Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations

Publication Date: December 2004

Publisher: Library of Congress. Congressional Research Service

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Research Area: Government; Transportation

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Abstract:

Since the terrorist attacks of September 11, 2001, security measures in and around our nation's transportation facilities have dramatically increased. Nowhere has the increase been more noticeable than with respect to air transportation. New federal statutes and agency regulations have been implemented, each with the purpose of ensuring the safety and security of passengers, facilities, and workers of our national transportation systems. Not all of these security measures, however, have been publically disclosed. In fact, pursuant to its statutory authority, the Transportation Security Agency (TSA) has issued a series of regulations relating to transportation security in which a majority of the information, including rules, orders, and directives has been classified as "sensitive security information" (SSI), and thus, withheld from public scrutiny. For example, the regulation requiring that all passengers produce photo identification before being allowed to enter the airport gate area or board an aircraft, bus, or train has been classified as SSI, and consequently, cannot be disclosed to the general public. In addition, the standards utilized for creating, maintaining and requiring airlines to screen passengers against governmentprovided "watch lists" and "no-fly lists" do not appear to have been made publicly available.

Recently, news reports have noted that at least two members of Congress have been delayed because of concerns relating to similar names appearing on such lists. Moreover, a California resident has brought a suit against the government alleging that the secret nature of these laws violates established rights under the Fifth Amendment's due process clause, as well as the constitutionally protected right to travel and the First Amendment. In addition, there is pending federal litigation with respect to the constitutionality of both the "watch" and "no-fly lists," as well as pending state litigation regarding the scope of TSA's authority to seize evidence obtained during a routine search of a passenger's luggage. While it is unclear precisely what the courts will decide, these lawsuits raise constitutional questions not only about the scope of the federal government's authority to prescribe regulations that impact the ability of citizens to freely move within our country's borders, but also about the government's ability to keep those regulations from public scrutiny. This report examines the legal basis for the transportation security measures, including the SSI regulations, and analyzes the constitutional provisions under which these measures are currently being challenged. This report will be updated as events require.