How To Make Airport Security Safe, Secure, and Fair for Everyone

The law, lawyers, and the court.
July 12 2012 1:46 PM

Wait, Who Gets To Skip Airport Security?

Airlines are letting preferred customers skip the lines while the rest of us hold our shoes. How to fix a broken system.

Airport Security.
The present system may be anti-egalitarian, but is probably not illegal

Photograph by Thinkstock.

Air travel in the United States has never been a model of equality, but in the first years after the Sept. 11 attacks, there was at least a sense of shared sacrifice, as coach and first class passengers endured longer lines and heightened security together. The moment did not last, and today airport security is poised to become another front in America’s class war, a struggle between frequent fliers and not-so-frequent fliers.

We have all been there. While everyone who flies commercially is required to clear a TSA screening checkpoint before proceeding to the gate, first-class passengers and frequent flyers get a special queue, with expedited access to the screening process. Meanwhile, the rest of us wait in long lines—sometimes much longer lines—muttering discontentedly like so many budding Bolsheviks.

Nebraska Sen. Ben Nelson would like to change this. He recently introduced the Airline Passenger Fairness Act, which would prohibit airlines from allowing elite passengers to receive preferential security treatment.

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But don't start humming “The Internationale” just yet. While Sen. Nelson is seeking to legislate equality, the TSA is rolling out its own program, PreCheck, which allows a select group of frequent flyers to enjoy a greatly streamlined security inspection.* Delta, American, and Alaska Airlines have been quietly inviting their eligible elite passengers to participate for months, and a broader rollout is expected soon.

No matter what direction we move—more or less egalitarian—it’s clear that many people don’t like the way things are. In 2009, a passenger sued Delta Airlines and the TSA, alleging that the two-tiered system denied him equal protection under the law. Among other things, Delta flatly argued that it had every right to treat its better paying customers better. Delta won.

The present system may be anti-egalitarian, but is probably not illegal. Unlike race, age, or disability, wealth is not a legal "suspect class," and sorting passengers according to the price of their tickets does not raise obvious constitutional problems. That is especially true when those doing the sorting are private companies.

While it may appear as though TSA is the one giving well-heeled travelers preferential treatment, it is the airlines that actually separate the sheep from the goats, dividing coach and privileged passengers into two lines prior to the TSA checkpoint. The TSA claims to be agnostic: In theory, if you appear at their first-class podium with a coach ticket, they will let you through if you have a valid boarding pass, proper identification, and are not on a government watch list.

Even if the present system passes constitutional muster, that doesn’t make it good policy. The benefits of this system accrue primarily to the airlines, who bundle preferential treatment as part of a package of perks that come with very expensive tickets.

Besides the long lines, what makes the situation so frustrating for the coach crowd is that all fliers contribute equally to the cost of security. Every passenger pays a Sept. 11 Security Fee of $2.50 per segment travelled, a fee that in 2008 covered $1.8 billion of the $4.8 billion spent by the TSA on aviation security. The rest came primarily from taxes.

Everyone wants shorter lines. The question is how to get them fairly, without sacrificing security. First you need to understand why the lines got so long in the first place.

An obvious culprit is the increased security itself. Removing shoes and extracting laptops takes time. It’s also the case that there are many more of us boarding those flights. While ticket sales have had their ups and downs, overall sales on commercial flights originating in the United States rose by about 20 percent between 2001 and 2011. That's an additional 11 million passengers a month.

Technology isn’t always helping, either. The advent of convenient rolling luggage has encouraged travelers to bring more on board, increasing the burden on scanners. And lest we forget, not long ago, before online boarding passes and self-service kiosks, economy passengers began their journey at the ticket check-in counter, sometimes waiting an hour or more in line. Elite fliers, then as now, had their own, much faster lines. Since check-in created a massive bottleneck for ordinary passengers, there was rarely a hold-up at security. Today's passengers go from the parking lot to the gate much faster, so the bottleneck has simply moved from one place to another. Now we all wait in line at TSA, except for the elite passengers, whose spending power and clout with the airlines have them leaving the rest of us behind holding our sneakers.

No one disputes that airlines are free to offer perks to their best customers, but preferred access to the TSA feels different because security screenings are mandated and conducted by the government. Letting Delta give preferred access to TSA seems like letting H&R Block's wealthiest customers file their taxes on July 15.

It is tempting therefore to root for Sen. Nelson and scrap preferential treatment altogether. But while that might be the most egalitarian solution, it is not the best one. PreCheck, which seems like just another way of cosseting elites, actually represents progress. It is to everyone’s advantage if the TSA diverts its limited resources away from screening frequent business travelers, the people who present the least risk of terrorism. At least in theory, PreCheck is a win-win.

But what about those still left in line? We think congestion pricing, the well established practice of charging more for commuters who choose to access crowded highways during peak times, offers an answer. Everyone already accepts the notion that the government can set aside lanes for high-occupancy vehicles, charge a fee for a premium route such as a turnpike, or let rush hour drivers pay for access to heavily used highways.  

All of these approaches are sound, but only a crazy person would suggest letting automakers set tollbooth prices or reserve special lanes for drivers of luxury vehicles. (Imagine the flashing highway sign: This lane is now available for drivers of a Lexus, BMW, Mercedes, or other vehicles worth more than $90,000 at time of purchase.) Yet that is effectively what occurs in airports, as airline carriers allocate access to a scarce public resource (TSA security) in a way that benefits not the public at large, but only the airlines' bottom lines.

We say keep the short lines, but unbundle them from first-class and frequent-flyer status. Anyone running late or who puts a huge premium on her time could pay a fee—to the government, not the airlines—for preferred access to TSA.  

At $10 or $20 for the short queue, it might be possible to eliminate the current $2.50 tariff and raise the same amount of revenue. Most would balk at the added cost, but fast access would be there when most of us really needed it—and for much less than the difference between the price of a first class and economy ticket. And, of course, if airlines wanted to pay the fee on behalf of certain preferred customers, they'd be free to do so.

No one besides an airline CEO would have chosen to replace the egalitarian, single-line system we had after Sept. 11 with the inequitable system we have today. It only seems acceptable because we have grown accustomed to it. PreCheck may help shorten lines somewhat, but a pay-as-you-go system would provide greater equality and more efficiency for everyone.

Correction, July 13, 2012: This article originally stated that some frequent fliers could skip security checkpoints altogether. These passengers must still walk through a metal detector and have their bags scanned. They do not have to observe other regulations—such as removing shoes, belts, and outer garments—or take laptops or liquids from their carry-on luggage for inspection. (Return to the corrected sentence.)

Randolph Cohen is a professor at the MIT Sloan School of Management.

Raymond Vasvari practices First Amendment law as a partner at Berkman, Gordon, Murray & DeVan in Cleveland. His blog, Somewhere Becoming Rain, deals with the First Amendment, among other things.

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