By John Alan Cohan, Esq.

Clearly, the aviation industry industry is important to the economy of the United States. There are many issues that have come into sharp focus for the aviation industry since the September 11 terrorist attacks, including effects of the free market, increased insurance costs, terrorism, change in customer habits, expenses led by new security measures, rising fuel costs, and emerging markets such as ownership of fractional interests in private aircraft.

At least 3 million people get their jobs directly or indirectly from the airline industry. Some statistics indicate that about 13 percent of the American economy depends directly or indirectly on the airline industry. Today, even the relatively successful carriers are struggling mightily.

It seems to me that looking to the future, carriers will only survive if they have transformed themselves in a way that recognizes the existence of a new business model. They have to be cognizant that in most of their markets there is very low-cost competition. There is no single business model that endures forever. The problem with the traditional network carriers is that since deregulation they have focused on competing with one another. Now that the low-cost carriers are so pervasive and cover so many markets, they need to be further re-engineered to be competitive with them as well. This apparently is well underway at a number of the major carriers. The same phenomenon apparently is taking place in Canada and Europe, where companies are either going to go away, they’re going to reorganize in bankruptcy, or they will transform themselves.

To some extent commercial aviation has been eroded by people who, instead of flying for face-to-face meetings, will instead have a conference call. Also, business travelers are increasingly pressed by corporate managers to book routes that are at lower costs. In addition, the major carriers are losing some of their business to private aircraft.

One of the most difficult hurdles that impact commercial aviation is intrusive searches at airport security checkpoints. Many women have complained of pat-down searches that are humiliating and disturbing. Rules permit a random search of carry-on bags that have passed through the x-ray scan without arousing suspicion. Officials justify these intrusive searches based on the notion that there is an ongoing threat to the public.

In a case concerning airport security searches, it was held that an airport screening search is reasonable if:

“(1) it is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives;

(2) it is confined in good faith to that purpose; and

(3) passengers may avoid the search by electing not to fly.”

Of course, in the 21st Century, avoiding the search by electing not to fly is simply not a viable option. An American citizen should not be forced to choose between two constitutional rights: the right to travel and the right to remain free from unreasonable searches. Forcing passengers to choose between the right to travel and the right to remain free from unreasonable searches is a form of coercion. Except for those who opt to take private aircraft or other alternative transportation, most passengers have no realistic alternative.

Once a passenger places baggage on the x-ray machine, the passenger, according to prevailing law, consents to a random, physical search, when in reality the passenger has not consented to any search or, at best, has consented only to the x-ray search and not the random physical search. Nonetheless, a federal court has observed that an x-ray scan is “inconclusive, justifying further search, even when it doesn’t affirmatively reveal anything suspicious.”

The random searches go beyond what is necessary to detect weapons and explosives, a function that is adequately served by the x-ray scan. The random, physical search is in effect a general warrant to search for items other than weapons and explosives. In some instances, these searches have resulted in arrests for possession of illegal drugs or other contraband.

Of course, if an x-ray scan arouses suspicion, due to an indeterminate shadow or outline, probable cause exists to undertake a physical search.

No one discounts the tragic events of September 11, 2001, and the enormous economic repercussions that have resulted from those attacks. Airplane pilots are now permitted to carry guns, and their cockpits are securely locked, so that even if a terrorist does manage to get aboard an aircraft, there are additional and substantial hurdles to taking over an airplane. It seems to me that random, physical searches of carry-on luggage following x-ray searches, and random searches of people who have successfully passed through the security point without arousing suspicion have gotten out of control.

FMI: John Alan Cohan is a lawyer who handles tax and aviation matters. JohnAlanCohan@aol.com