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Abstract
In 1966, as commercial jet-airline travel became more routine, the United States
Supreme Court confirmed that the “freedom to travel throughout the United States has long been
recognized as a basic right under the Constitution.”1 Recent federal security measures designed
in response to the terrorism of September 11, 2001 complicate this freedom. Currently, the
Transportation Security Administration (TSA) is implementing a comprehensive computerized
profiling system called “Secure Flight.” Secure Flight is the next generation of the TSA’s
existing “Computer Assisted Passenger Pre-Screening System” (CAPPS). CAPPS itself
generated considerable privacy and civil liberty concerns, evoking references to an Orwellian
society. The current aviation security environment marks a shift in the government’s approach
to airline passengers’ rights. Governmental impulses to regulate and upgrade airline service
through an “Airline Passengers’ Bill of Rights” (Ravich 2002) have ceded to security-related
initiatives that implicate passengers’ Fourth Amendment privacy rights. This article surveys the
constitutional concerns about the TSA’s initial CAPPS program and its subsequent
reformulation. In doing so, this article confronts and offers a practical and legal juxtaposition
of the ideal of a “right to be let alone” (Warren and Brandeis 1890) relative to the post-
September 11 ultimatum of former American Airlines Chairman and CEO Robert L. Crandall
(2002): “You want to travel on the airline system? You give up your privacy. You don’t want to
give up your privacy? Don’t fly. Your privacy isn’t equal to the safety of the rest of us.”