And Now, a Word from Our Lawyers…
Since there are no lawyers on the blog team, they asked me to weigh in on some comments that have come into the blog on legal and constitutional issues. I'm the Chief Counsel at TSA, Francine Kerner, and I hope I can provide some useful information to those interested in the legal aspects of the screening process.
In regard to comments questioning the constitutionality of TSA's airport security screening procedures, the courts have addressed the issue and disagree with the notion that our procedures are unconstitutional. TSA takes the rights of the traveling public very seriously, and in implementing security screening measures, carefully weighs the intrusiveness of those measures against the need to prevent terrorist attacks involving aircraft. Balancing the same considerations, the courts have long approved searches of airline passengers and their bags for weapons and explosives as constitutionally permissible under what is now commonly referred to as the "administrative search" or "special needs" exception to the Fourth Amendment warrant requirement. See, for example, United States v. Edwards, 498 F.2d 496 (2d Cir. 1974). More recently, the courts have ruled that TSA procedures involving identification checks and passenger screening satisfy the requirements of the Fourth Amendment and properly respect the public's qualified right to travel.
See, for example, United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007); United States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006).
I see that at least one person was troubled by the fact that TSA's screening of airline passengers sometimes yields evidence of crimes not directly related to aviation security. Our responsibility and focus in the airport screening process is to prevent a terrorist attack involving aircraft. In the course of carrying out our mission by screening for weapons and explosives, however, we sometimes incidentally discover illegal items unrelated to transportation security. Federal law and policy require that we refer such items to law enforcement officers for appropriate action. See, for example, United States v. Marquez, 410 F.3d 612, 617 (2005).
To the commenters who have complained about receiving secondary screening despite not having alarmed the walk-through metal detector, there are several reasons why an airline passenger may receive additional screening. For example, some passengers are randomly selected for secondary screening in order to help detect dangerous items that might not alarm the metal detector. Adding this element of randomness to the process makes manipulating the system more difficult.
And finally, to address the comments that expressed concerns about screening in retaliation for voicing complaints about TSA: it is not TSA's policy to subject anyone to additional screening because of their political views or complaints about the screening process. However, threatening a security officer may trigger additional screening.
Thank you for the opportunity to respond to your concerns.
update by Francine on 2/27/08:
To date, we have received over 100 responses to our post regarding TSA's legal authority to conduct security screening at airports. Many of your responses raise questions about the authority of TSA personnel to request a name or other identifying information (ID) from a passenger. You also want to know why the information is requested, how the information is used after you provide it, and whether TSA is following the requirements of the Privacy Act of 1974 (Privacy Act), 5 U.S.C. § 552a, in requesting and using your personal information. Today's post will answer these questions.
In simple terms, the Privacy Act is a statute that controls the government's collection of personal information for later use. This is an important point. Merely asking a traveler to provide ID for a quick examination at the checkpoint does not trigger application of the Privacy Act as long as the agency is not making a record of the information to use in the future. In contrast, if TSA records a traveler's name or other identifying information with the intention of filing the information so that it can be retrieved at a later date by the traveler's name or ID, the agency is required to comply with the provisions of the Privacy Act.
During the screening process, TSA tries to identify individuals who may be planning to do us harm now or in the future. TSA tries to prevent potentially dangerous items from being brought into the boarding area. Finally, TSA responds to incidents that occur during the screening process. A passenger may need medical assistance, screened property may be damaged, lost or stolen, or an individual may become abusive in challenging a screening determination. Handling of these or any other matters may lead TSA personnel to request a traveler's name or other identifying information for filing in a Privacy Act system of records.
As a general matter, information filed in a TSA Privacy Act system of records may be used for a variety of security and administrative purposes. It may be used to identify individuals who require special screening procedures. It may be used to pursue a criminal prosecution or a civil enforcement action. It may be used to evaluate an injury or property claim, or to respond to a passenger complaint. TSA has listed all of the routine uses for the information it collects in the Privacy Act system of records notices published by the agency in the Federal Register. Most of the personal information collected in connection with the screening process is kept in a TSA system of records entitled DHS/TSA 001 Transportation Enforcement Records System (TSERS). See 69 FR 71828 (Dec. 10, 2004).
In some situations where TSA collects information directly from an individual, the Privacy Act requires TSA to provide a written notice to the individual setting forth its authority to gather the information and describing how the agency will use the information. One example of a TSA Privacy Act notice appears on the comment card that may be obtained at some screening checkpoints. Requesting a comment card should not result in harassment of any traveler. Additionally, TSA will accept anonymous comments either by filling out a comment card or by forwarding comments to the TSA Contact Center at tsa-contactcenter@dhs.gov.
Under the Privacy Act, any individual may submit a request to TSA to obtain the information we have on file about the requestor. With rare exceptions, which are set forth in the Federal Register, we will provide the requestor with the information we have in our files.
If you wish to see a further discussion of the Privacy Act, please see our Web site, at:
http://www.tsa.gov/research/reading/regs/privacy_act_faq.shtm.
Thank you for your comments and questions about the Privacy Act. We hope that you will check back on the Blog for future posts regarding legal issues.
Labels: legal issues, policy
posted by Francine at
4:19 PM
191 Comments:
Francine,
How about addressing the issue of the Privacy Act with regards to information that is collected. Some at TSA have claimed it's exempt, and it is in some respects, but did TSA exempt itself from the whole act?
Why do screeners demand to see ID when asked for a complaint form? Why do they not provide a privacy act notice telling me how long the information is being used for, why it's being collected, and how it will be used? This isn't for things like hits on the ETD (though I'd argue that a notice should be provided there too). This is for simple things like a complaint form.
I'll have to read the decision on the "administrative search turning criminal."
Additionally, TSA may not condone retaliatory secondaries when calling on a TSO to follow published rules, but it happens a lot. It's happened to me and it's happened to a lot of people I know. It happens. TSA can choose to stick its head in the sand or do something about it.
Robert
February 21, 2008 4:59 PM
Francine, what about the idea that this is a public forum and the TSA (the government) has no right to moderate comments that don't endanger national security, employee safety, etc. Isn't racist, offensive, vulgar, off topic, and promotional speech clearly protected?
February 21, 2008 5:21 PM
Retaliation does happen. It may not be "policy" but it exists, happens regularly and there is a gross lack of accountability by the employees who may then hide behind the shield of policy, SSI, or just the supervisor who colludes with these screeners in continuing the harassment of passengers who dare to speak up.
The continued failure by the TSA all the way to the top of their legal pyramid to acknowledge these practices is not surprising.
February 21, 2008 5:25 PM
In spite of the fact that many posters have addressed the issue of the Privacy Act and how it pertains to passengers at checkpoints, you conveniently failed to address it.
Please do so.
February 21, 2008 5:27 PM
What about the Privacy Act? Why don't you follow it, and why will you not directly answer accusations that you avoid following it?
Stop avoiding the question!
February 21, 2008 5:29 PM
in regards to the section about secondary screening. If you have a quad S (SSSS) on your boarding pass you will undergo additional screening. The quad S is printed on your boarding pass by the airlines. They can choose to select you if they wish. The TSA officer 'may' refer you for extra screening and that can be due to your passport, license, docs. etc. looking fradulent. Or perhaps you just pissed him off, with your witty remarks, and/or pleasant face. just remember this TSA doesn't print your boarding pass with the SSSS on it, its your airline. try this next time: ACTUALLY LOOK at your boarding pass, and try not to act so surprised.
February 21, 2008 5:54 PM
Finally, a posting which should generate intelligent conversation, as opposed to "TSA SCREENERS ARE STOOPID."
February 21, 2008 5:58 PM
I understand that the generic concept of random searches, etc. by TSA is constitutional and upheld by the courts. I would, however, like to know where the following fits in to your understanding of the constitutionality of TSA's mission:
1. TSA supervisors who say, "There are no First Amendment rights at a security inspection point," as one did last year during the incident involving the remark about Kip Hawley that was written on a plastic "liquids" bag.
2. Requiring disclosure of personal information by passengers who wish to file a complaint. How does that comply with the Privacy Act? How does that comport with the First Amendment -- does it not chill speech?
3. Requiring disclosure of personal information when a swab test yields a verified false positive, i.e. the machine was wrong and subsequent testing and inspection revealed no explosives residue. Why is passenger information collected? What is done with that information and how do TSA procedures in this regard comply with the Privacy Act?
4. How do retaliatory secondaries, i.e. those that are done because a TSO doesn't like a passenger's "attitude" comply with the First, Fourth and Fifth Amendments?
5. We often hear, "Do you want to fly today?" in response to questioning non-standard procedures, e.g. some TSOs require that all electronics, rather than only computers and camcorders, be placed in the bins, etc. (and notwithstanding that the TSO doesn't have the power to prevent someone from flying -- that's up to the airline's GSC). How does this tactic comply with the Fifth Amendment?
I understand that TSA walks a fine constitutional line, and the overall concept of searches, x-rays, etc. are compliant. The devil, however, is in the details and, it seems, too many TSOs and their supervisors seem unfamiliar with the constitutional limitations on their power.
February 21, 2008 6:04 PM
"...it is not TSA's policy to subject anyone to additional screening because of their political views or complaints about the screening process. However, threatening a security officer may trigger additional screening."
You do know you just described a recipe for abuse. This abuse DOES happen. Try asking for a complaint form during the screening process. You WILL be subjected to a retaliatory screening. This seems to be established procedure.
February 21, 2008 6:08 PM
"I see that at least one person was troubled by the fact that TSA's screening of airline passengers sometimes yields evidence of crimes not directly related to aviation security. Our responsibility and focus in the airport screening process is to prevent a terrorist attack involving aircraft. In the course of carrying out our mission by screening for weapons and explosives, however, we sometimes incidentally discover illegal items unrelated to transportation security. Federal law and policy require that we refer such items to law enforcement officers for appropriate action. See, for example, United States v. Marquez, 410 F.3d 612, 617 (2005)."
I am looking forward to the day when this is challenged in court. It will take a very carefully set-up of a screener. To date, people who have challenged being arrested for drugs have had the motivation of getting evidence thrown out in order to avoid a conviction. What it will take is a brave American and a group of very savvy lawyers who build a lawsuit such that the only issue at question is the search. If you compare a screening checkpoint with, for example, a DUI checkpoint, a cop must abide by the "in plain sight rule when discovering an open container, or visible drugs or perhaps a weapon. He or she simply can't open your glove box or trunk because you drove up to a DUI checkpoint. Further, courts have ruled in favor of citizens who turned around when they saw a checkpoint in order to avoid it. Now, you people assert that once you begin the screening process, you can't stop it. All a screener has to do is to say "I think I saw something." and it's open season to search everything on an individual for anything you might possibly find.
Why do you just stop at drugs? Why not start looking for bootleg software or DVDs, adult material that, in the opinion of a screener, violates local community standards, etc.
Also, We, the People, would like your explanation about the constitutionality of SPOT interrogations, some of which are on the open side of the checkpoint . What do you claim is the legal authority for such stops, and why does the Terry standard not apply?
When we have adequately addressed these issues, I'd like -- no, We The People would like -- your legal justifications for:
1. Routine violations of the Privacy Act of 1974, as amended, in the areas of disclosure requirements for systems of records pertaining to other than those for which you seem to have exempted yourselves and in the area of screeners and supervisors keeping illegal systems of records; and,
2. Screeners who assume the authority to make medical decisions concerning the amount of medication they believe is necessary. Screeners come very close to violating HIPPA and to committing the felony of practicing medicine without a license.
You people are WAY over the line. And, no, I will not just simply stop flying. My country means too much to me to allow this to continue.
February 21, 2008 6:34 PM
Gilmore v. Gonzales was a travesty.
Secret laws (and rules and regulations that have the force of law) are not Constitutional. In this case, the directives were transmitted in secret, orally, and changed weekly.
The court claims Gilmore had notice of the identification policy. But, in fact, he was told contradictory information about whether it was a government rule or an airline rule. And, in fact, in 2002, those checking the IDs were still airlines employees, not TSA officers.
The court also says the Gilmore refused to show ID. In fact, Gilmore had no government-issued photo ID. He was forced to surrender his driver's license when he was diagnosed with epilepsy.
February 21, 2008 6:51 PM
Very civil, professional presentation. I found it some what informative, especially since law is not my area of expertise. That is until the end and the twist was put into it. Followed with a thinly disguised threat of the stick. Totally nullified the any good the presentation will have had. Well at least with this member of the traveling public. Just sad, so sad. What a waste of a opportunity.
February 21, 2008 7:01 PM
Hello,
I love your blog so far! :-) Keep up the good work communicating with the public.
One thing that I don't understand, however, is why your ID checking takes so long. I have seen repeated complaints about longer lines and the screeners taking 1-3 minutes to check everyone's ID's. I thought the purpose of airport security was to check for dangerous items on a passenger. Why did you, the TSA, take over ID checking? That should be up to the airline - they select privately-owned contractors to check ID's. The private contractors were much faster checking ID's, and they did a good job, too. Please address this issue in another blog why TSA takes longer checking IDs, and how checking IDs relate to actual security, as fake IDs, while illegal, are not contraband that will bring a plane down.
Respectfully,
Andrew
(PS. thanks for posting the court texts - that proves that you guys are smarter than what people think.)
February 21, 2008 8:14 PM
This isn't about law. It's about appearances. My uncle died last night. My 86 year old mother and 84 year old father are DRIVING three days, minimum, to go to his funeral. The TSA is the reason they are not flying. My mother is terrified of being forced to take off her shoes, afraid she won't be able to get them back on. She is afraid of having important medicines which cannot be placed in checked baggage stolen from her because she does not have the right size containers. She is afraid of having needed food confiscated. She is afraid she will get to the air port and have her folding wheel chair confiscated, or the walker she uses in the restroom declared "excess baggage."
I showed her print outs from the TSA web site where it says she can have a special screening. But the reports of friends who were harassed, hassled, or snarled at, or who had food and medicines confiscated weighs far higher with her than any amount of print-outs.
I have even offered to fly with them to assist them. No dice. My mother is absolutely terrified of what THEY will do to her at the airport.
So, courtesy of the TSA, my parents are risking three days of hard travel, risking dangerous conditions, and black ice. And that's just to get there. Then they have to get home.
Legally, you probably can't be held responsible for their decision. Morally, you are. My mother is more afraid of the TSA than she is of terrorists. After all, terrorists can only kill her. TSA will humilate her, not once, but many times.
February 21, 2008 8:41 PM
While I have no doubt that official TSA policy forbids employees from using additional screenings as retaliation against passengers that does not mean it does not happen.
I have spent twenty years in a corporate setting and in that time I have seen employees invent policies as a way to retaliate against customers. I have no doubt that TSA employees do the same thing and then claim the passenger threatened them. Who are then backed by supervisors.
The question is how do we file a complaint against a TSA employee and have a garuntee it will be investigated without bias.
February 21, 2008 8:43 PM
How do we as passengers deal with TSA employees who confiscate items not on the list? Any time the TSA deals with this, like two doctors who had most of the baby's food confiscated they claim they have discretion to act as needed. What protection do we have?
February 21, 2008 8:47 PM
Might be time for TSA to begin taking a closer look at some of these complaints and begin addressing those complaints.
Issues with the Privacy Act, messing around with medications, attempting to remove surgical dressings, all are serious issues. Who takes liability for any adverse outcome of TSA overstepping it's job? Are we as traveling citizens just at the mercy of the TSO who happens to have a bad day?
The impression that many have of TSA as an organization, is that it answers to no one for it's actions. That is a dangerous situation, because if you feel you answer to no one then you, in effect are above the law.
February 21, 2008 9:14 PM
This post has been removed by a blog administrator.
February 21, 2008 9:45 PM
What about having two separate lines for coach and first class passengers? This seems like a horrible policy for the government to have. I wouldn't expect to see two lines at the DMV. Seems to me like a pretty blatant violation of the equal protection clause (fourteenth amendment) and hints at "separate but equal," struck down by Brown vs. Board of Education, 1954.
February 21, 2008 9:48 PM
Quote: "in regards to the section about secondary screening. If you have a quad S (SSSS) on your boarding pass you will undergo additional screening. The quad S is printed on your boarding pass by the airlines. They can choose to select you if they wish. The TSA officer 'may' refer you for extra screening and that can be due to your passport, license, docs. etc. looking fradulent. Or perhaps you just pissed him off, with your witty remarks, and/or pleasant face. just remember this TSA doesn't print your boarding pass with the SSSS on it, its your airline. try this next time: ACTUALLY LOOK at your boarding pass, and try not to act so surprised."
Bolding mine.
I think you just confirmed what many of us are saying is happening and that TSA is denying. It's a poor reflection on TSA that TSO's send people to secondary just for the fact that they said something they didn't like, didn't look right, challenged them on making up policy, etc.
Big thumbs down.
Yes, I know about the haraSSSSment flag on the boarding passes. I always look for it. However, I've never had it when I've been sent for retaliation ... err ... "continuous and random screening" simply for requiring a TSO to stick to the rules.
And don't even get me started with the "Do you want to fly today?" ...
Robert
February 21, 2008 10:23 PM
How about the different screening treatment one religious group recieves that is different than all other groups.
How can a certain group be allowed to "pat down themselves" and not all other groups without violating my religious rights.
February 21, 2008 11:09 PM
This post has been removed by a blog administrator.
February 21, 2008 11:10 PM
How strange that Kip's remarks on screening of liquids completely disappears after his now missing point #4 stating that it is near impossible to assemble a working exxplosive in the aircraft.
Why were these remarks removed?
Did the publics request for clarification confuse the lawyers?
February 21, 2008 11:34 PM
Quote: "What about having two separate lines for coach and first class passengers? This seems like a horrible policy for the government to have. I wouldn't expect to see two lines at the DMV. Seems to me like a pretty blatant violation of the equal protection clause (fourteenth amendment) and hints at "separate but equal," struck down by Brown vs. Board of Education, 1954."
This one isn't TSA's fault. The airlines are responsible for the lines up to the checkpoint and they provide premium lines for customers who pay more or fly with them more.
If you pay more for a higher end product, do you expect to get more or the exact same thing as the person who paid for a lower end product?
As it's the airlines that setup the lines, they are free to set them up as they've negotiated with the airport authority. Once at the checkpoint, TSA takes over.
Don't wory ... TSA will still screen and harass those people just the same.
If it's a perk you want, fly more or pay more for the ticket.
February 21, 2008 11:45 PM
TSO Tom,
I hope that you see what your colleagues are doing. There are good TSO's out there. However, there are a lot of them (some that even post in this very thread) that prove the points that people like me complain about.
You're stuck in a bad position of having to enforce policies that make absolutely no sense and do nothing for security. Complaints go with the territory.
I hope you see that it's a 2 way street. If TSA stops treating people like criminals and its employees stop abusing their authority, perhaps people will be more pleasant when they go thru a checkpoint.
The funny thing is, the world isn't THAT different prior to 2001 and after 2001. The difference is how we react to events that happened. Beforehand, we took them in stride. Now this country is running scared, constantly being kept in fear. TSA has a lot of responsibility in that.
People didn't gripe about security then. Security was largely fine ... it wasn't screening that failed on 9/11. That's not to say there wasn't improvements needed, but lines were a lot shorter and security wsa much less of a hassle.
So if you're facing a grumpy public, TSA really only has itself to blame.
Robert
February 21, 2008 11:56 PM
What is the legal basis for requiring me to present ID in order to be screened by government employees for an air plane ride?
February 22, 2008 12:52 AM
I have to agree with most of the posters here. We've all seen screeners act inappropriately, and many of us have seen retaliatory action on their part.
Some of those cases quoted are farces. Secret laws are no way to protect a country. --Just look how the Soviet Union turned out if you think they're the way to go.
February 22, 2008 5:24 AM
@Randy, choosing to fly is a choice. You either abide by the rules or you don't fly. It doesn't get any more complicated than that. I am the first to admit it can be a difficult process for some. For most people it is not difficult. 1. Buy a ticket. 2. Submit ticket and a valid ID. 3. remove shoes and place in xray. 4. place belongings into xray. 5. submit yourself for screening. 6. gather your things and put your shoes back on. 7. go to your gate. 8. get on the plane.
Even my youngest child could do this without difficulty. It takes a little preparation at home before you leave for the airport. know what you can or can not take onto a plane. Prepare your liquids, creams, jells, paste and aerosols into a clear quart size zip lock baggy.
@Robert- The customer satisfaction forms are available for everyone to use. ID not required to get one. They are strategically place at all checkpoints. If you can't find them ask someone to point them out. Fill it out and slip it into the locked box.
I have yet to see one person submitted for secondary screening solely for being rude and obnoxious. The rude and obnoxious behavior is usually paired with something else. For example; I'm in a hurry. I don't want to remove my belt, or cell phone from my waist even though I have already alarmed the walk thru metal detector once. (hint: If you alarm twice you get secondary screening.)Alarming twice usually sends the already irate passenger into a bigger tirade. Annoying but not the reason for the secondary screening. :) If you are annoying enough to require the assistance of a law enforcement officer. That is another matter.
@ Anonymous, I think people should have the right to voice a complaint or voice an opinion on this blog. Posting here is a choice. NO one is forcing you to let the world know what you are thinking. Most people post anonymously. Some people gripe because they like to. On the other hand. TSA does not have to allow vulgarity or personal attacks to be posted here. If you want to do that sort of thing, go somewhere else.
February 22, 2008 8:33 AM
"Anonymous Sandra said...
In spite of the fact that many posters have addressed the issue of the Privacy Act and how it pertains to passengers at checkpoints, you conveniently failed to address it.
Please do so."
I asked this very question a few days ago, as well as why they copy down my ID to get a complaint form. They told me that TSOs should not be asking for my Social Security number and made a big deal about it. Strangely, I had not asked about SS#. I had asked about my rights to Privacy Act disclosures.
Bottom line: They threw in that bit about the SS# as a red herring, as if I had asked about it. They also completely ignored my questions about the Privacy Act, particularly as it pertains to 5 USC 552a (e)(3). We will never get an answer to this question, because of the ramifications of admitting that the TSA has excluded itself from the Privacy Act.
Mike
February 22, 2008 8:47 AM
@ anonymous, TSA fully discloses we are going to conduct a thorough search of you and your bags before you get on the plane. If you submit your person and belongings for screening, Then you are agreeing with our policy. If you don't agree with our policy then don't fly.
And one more thing. For Example; If you don't want us finding your weapons, your drugs, your laundered cash then don't carry it on the plane.
February 22, 2008 9:02 AM
I posted this link last night - and apparently it was either deleted or deemed not good enough for this blog, so I'll post it again.
This article talks about what happens to items confiscated by the TSA, which is quite different from what's been detailed by the TSA at this blog.
http://www.msnbc.msn.com/id/23277627/
February 22, 2008 9:17 AM
tso phx:
1) I have yet to see one person submitted for secondary screening solely for being rude and obnoxious. The rude and obnoxious behavior is usually paired with something else.
It's happened to me, repeatedly. I got so fed up with being groped by the TSA that, for a while I went through security wearing nothing but spandex. I was covered the same as someone wearing a T-shirt and pants, and not violating any laws relating to indecent exposure. Nevertheless, at the checkpoint in Baltimore, I was selected for secondary screening even though I did not set off the metal detector (indeed, the only metal on my person at the time was the unitard's zipper and my glasses), and every single piece of electronics I was carrying got ETDd. This included my cellphone, which they didn't see as they disassembled my briefcase, but did when I put it on my belt - they took it from me and ETDd it.
My offense? I told a screener before the metal detector who asked why I was dressed as I was that I was tired of being groped by the TSA, and was making it obvious I wasn't carrying anything on my person. No, my boarding pass did not have the dreaded SSSS.
I quit doing it when the TSA manager at Columbus, Ohio called the police on me because he was personally offended that I'd worn nothing but spandex. The cops told me he'd asked them to cite me for indecent exposure, and he got mad when they told him that I wasn't in violation of the law. He then told me that he was offended by my dress and that he would not permit me to fly from his airport if I did it again, by the simple expedient of refusing to screen me. When I pointed out that he had no right to not be offended, he refused to discuss it with me any further.
2) If you don't agree with our policy then don't fly.
I don't have a choice in the matter. My job requires that I travel by air. If I don't fly, I don't work. Consent under such circumstances is not voluntary, it's coerced. This is the standard TSA answer to complaints, but it rings hollow for me: I either surrender my First, Fourth, and Fifth Amendment rights, or I lose my job.
February 22, 2008 9:49 AM
Francine:
I mentioned on this blog a reference to TSA's habit of using "discoveries" of contraband or other evidence of criminal acts, as evidence of its success as an organization. I am not questioning the authority of the Federal Government to arrest someone who is stupid enough to try to pass through an airport much less the security checkpoint with bricks of Cocaine strapped to his torso.
On the other hand, I am less than enthusiastic about having my rights violated (sorry, I'll take more stock in the Supreme court's opinion over the "many court cases" you cite....'til then we may have to wait) and my travel schedule loused up by "security theater."
So the bottom line question really is "has TSA actually tripped over a terrorist?" Increasingly you face a hostile public for all the reasons I cite, and yet the tired answer seems to be either that you don't know, or that you do, but it's classified.
Fred G.
February 22, 2008 9:49 AM
what about the consistency issue...between each airport and even the rules on your own website...
"On Tuesday, The New York Times told the story of Anand Soni and his wife, Arati Pratap. The two doctors flew with their 10-month-old daughter from Chicago Midway Airport to Manchester, N.H. Anticipating delays and full travel time, the couple stashed more food than necessary. Only when they reached security, the TSA agents confiscated a portion of the jarred delectables and formula.
Unfortunately, the TSA standards aren't crystal clear for flying families"
just unacceptable...
February 22, 2008 9:51 AM
"The customer satisfaction forms are available for everyone to use. ID not required to get one. They are strategically place at all checkpoints. If you can't find them ask someone to point them out. Fill it out and slip it into the locked box."
phx tso, you need to get out in the world and expand your horizons.
Forms are NOT available at all checkpoints; if you ask for one, you are often told they don't have any and people ARE asked for ID before they are given a form. As well, screeners often conceal their names on nametags so that a traveler can't give any information.
As part of your training, you should be required to transit several different airports and go through the screeing process then come back and tell us that these things don't happen.
February 22, 2008 10:10 AM
Since neither the Inconsistencies or Grips and Grins part of this blog is taking comments, I'll post this here.
I do a great deal of reading, both fiction and non-fiction, and one thing I have noticed in my reading is that the majority of authors, normally fiction, make very unflattering references to the TSA and security checkpoints when one of their characters is transiting an airport.
The most recent book I’ve read (written in 2003) mentioned having to walk barefoot across filthy floors, having the contents of one’s bag removed and displayed for all the other travelers to see, being groped and humiliated by a “security i***t.”
In this book, one of the characters says something to the effect of: “You want to be safe – this is just a small thing to keep us safe.” The comments by several characters following that are all along the lines of “this does nothing to make us safe, but to make infrequent travelers like you feel safe” and “it’s nothing but a show.”
Another book I read, written recently, makes reference and pokes fun at the liquids nonsense and 3-1-1. It’s too early to read about the ID checking and loupes and blacklights, but I’m sure writers in future books will have a great deal of fun with that.
So you see, TSA, it’s not just a few “whiners” out there. People I work with who travel a great deal initially supported you and your dog and pony show, but they are very quickly becoming aware that it is just a show. The sad thing is that so many people are afraid to speak up. You would be out of business if everyone who is fed up with your mission creep were to do so.
February 22, 2008 10:27 AM
Regarding the article above, anonymous, can you be more specific about how the article differs from what we've said here? If or another has made an error on the blog, we'll certainly correct it, but after reading the article it seems to jive with what we've stated before.
Chance - Evolution Blog Team Member
February 22, 2008 10:28 AM
For the individual angry about his mother being afraid to fly and having to drive; you might want to consider calling the airport you are speaking of and speaking to either the federal security director or the assist. federal director for screening. It has been my experience that TSA will help and may really lend you a hand with getting your mother to the funeral. They don't advertise it but at least in my small town, Baton Rouge, about a year ago I called and was treated nice to the point of going to their offices and meeting with the bosses. They gave me their cards, gave me advise on medications, and helped make sure the process was painless out and back. I even got a call the day before I left to make sure we didn't have more concerns. My wife has significant medical needs and we pack a lot of strange stuff. It may not work everywhere but it worked well in my neck of the woods.
February 22, 2008 11:05 AM
Quote: @Robert- The customer satisfaction forms are available for everyone to use. ID not required to get one. They are strategically place at all checkpoints. If you can't find them ask someone to point them out. Fill it out and slip it into the locked box."
TSO PHX, if this is the case at your airport, it's certainly a good thing. I know they are at some airports. However, in my travels, complaint/compliment/comment forms aren't readily available or available at all. IAD gave me an email address to write to someone who never bothered to follow up. BWI has never had them available. I've never seen them at SFO, ORD, DCA, or SLC either.
Usually, I've had to provide my own form.
Additionally, I know personally folks who have been carded when asking for a complaint form and then have their information copied down. A lot of times this is used as an intimidation tactic so people won't file complaints.
If you and your airport do it right ... good on you. Keep it up. :) However, a lot of airports don't and that's a big problem.
Quote: "I have yet to see one person submitted for secondary screening solely for being rude and obnoxious. The rude and obnoxious behavior is usually paired with something else. For example; I'm in a hurry. I don't want to remove my belt, or cell phone from my waist even though I have already alarmed the walk thru metal detector once. (hint: If you alarm twice you get secondary screening.)Alarming twice usually sends the already irate passenger into a bigger tirade. Annoying but not the reason for the secondary screening. :) If you are annoying enough to require the assistance of a law enforcement officer. That is another matter."
I didn't know being annoying was grounds for bringing an into it. I could see making threats, trying to run thru the checkpoint and stuff like that requiring and LEO. I don't think annoying qualifies (remember, passengers are probably equally annoyed by TSA too). More often than not, though, I've seen this used as an intimidation tactic.
I've been retaliated against prior to the liquid mess for wearing nonprofile shoes when the shoe carnival was supposedly voluntary. Some got it right, but nonremoval of nonprofile shoes was grounds for retaliation at a lot of airports. IAD was known for this.
Automatic secondaries aren't the only form of retaliation. Dragging out the screenings to the point someone almost misses their flight is a very common one. Often times, it occurs when a TSO keeps a passenger separated from his/her belongings during a secondary. Incidentally, this increases the risk of theft from a TSO or another passenger (ABC 7 in DC just ran something on this last week).
And if you push the issue, a lot of times you'll get the famous "Do you want to fly today?" bit from a TSO. It's even worse when a supervisor backs the TSO. And as people are often in a hurry, TSA has them by the short and curlies so what else are they going to do?
That brings us back to the complaint form that is either nonexistent or a hassle to get. TSA claims they take complaints seriously, but I've never had one responded to, and calls and emails to the TSA call center yield boiler plate responses at best and promises to call back go unfulfilled.
If TSA expects us to take them seriously, they need to show us that they take feedback seriously, are open to complaints and will act on them quickly and fairly and without impeding the process.
Robert
February 22, 2008 11:28 AM
How on earth did Doug's comment get posted? It is absurd.
February 22, 2008 11:41 AM
Quote: And one more thing. For Example; If you don't want us finding your weapons, your drugs, your laundered cash then don't carry it on the plane."
TSO PHX, weapons are on the prohibited items list. No one's complaining about you looking for those.
What people complain about is the fact that looking for drugs, laundered money, etc. Those are not prohibited items (though they may be illegal) and fall outside the scope of the consent to search. I think as David Nelson mentioned, this needs to be challenged in the right way as he described. You exceed the scope of your authority by turning administrative searches criminal, and in my opinion, violate those folks' constitutional rights.
Additionally, as TSO's have no training in what drugs look like (ie the woman who was arrested for having flour filled condoms) and carrying "too much" money isn't a crime. The only regulation on carrying cash is you have to declare it to customs if you are travelling internationally and have more than $10k in cash on you. How can you tell if it's laundered, or do you think that there's no valid reason for carrying that much cash?
Stick to looking for weapons and explosives (real ones ... not shampoo). Get better than an 80% failure rate before you try to be everything to everyone. Otherwise, instead of just doing one thing poorly, TSA ends up doing a lot of things poorly.
Robert
February 22, 2008 11:41 AM
Why the double screen of medical devices? (CPAP) Now you take it out of the carry bag, put both through the machine, then still go through the detailed second inspection. Why not skip the first step and just do the second inspection? As a frequent flyer, I understand the detailed second screen but definitely not the first.
February 22, 2008 11:51 AM
Want to file a complaint, use this link:http://www.dhs.gov/xtrvlsec/programs/gc_1169826536380.shtm
You can do it on line or download a form. To bad someone from the TSA didn't think to do this.
February 22, 2008 12:19 PM
Mr. Johnson, I'm not understanding how a screener could be expected to ignore a white powdery substance carried in a condom (a common method of drug transportation). I just don't see how it is possible for a screener to ignore what appears to be a blatently illegal item during the course of their duties.
Chance - EoS Blog Team
February 22, 2008 12:57 PM
The suggestion from Baton Rouge, with regards to special services is a good one, and much appreciated. Unfortunately, the TSA has carried out its (unofficial) policy of harassing the handicapped and the elderly too well. My mother refused to even consider talking to them, because she was certain they would promise one thing in advance, and not carry through when she arrived at the airport. So my parents are on their way. I pray their trip goes smoothly.
February 22, 2008 1:02 PM
Man, a lot of people come here to pick a fight. I have not posted here before but me me, I I. So lets see, if I come to a check point with an attitude, I and it should be ignored??? Whoever has that line of thought has never exercised their first amendment rights of free speech with a Chicago cop thinking it might help the situation. It goes back to what your grandmother told you. You get more flies with honey. On the other hand with TSA, stop demending so much respect and remember that you interviewed for the job and if dealing with the passengers is too much then get out, I'm sure it isn't for everyone. If you are a business traveler and can't stand dealing with what the traveling world has become then maybe it is time to find a new vocation. I know it isn't that easy, well---yes it is. Life is all about being able to cope.
February 22, 2008 1:15 PM
Now, you people assert that once you begin the screening process, you can't stop it. All a screener has to do is to say "I think I saw something." and it's open season to search everything on an individual for anything you might possibly find.
That is true.
Why do you just stop at drugs? Why not start looking for bootleg software or DVDs, adult material that, in the opinion of a screener, violates local community standards, etc.
We just might.
February 22, 2008 1:35 PM
From Baton Rouge: I hope the best for your mom but simply find it hard to believe there is an "unofficial" program to mess with the handicapped. I'm sure the handicapped must be checked in some way and we can thank others for the need to do that but I'll bet your mom is a lot like mine was in that she is very set in her ways, has slowed down quite a bit and doesn't like to be hurried and such. My mom was sure the bank ATMs were stealing her money and hated them. Of course they were not but she never trusted the technology or the drive up. Every time I pull $ now I smile. Good luck.
February 22, 2008 1:41 PM
I am amazed by the number of business and government entities who think that "X is not policy" is a valid defense for people accusing it of doing "X".
It may not be TSA policy to order secondary screenings to people who complain, but it surely is happening. Often.
I travel often on business for one of the large consulting companies, and the odds of my being referred to secondary screening correlate exactly with the degree that I keep my mouth shut during the process.
I would think as an attorney, you would appreciate the considerable risk this type of behavior puts on your organization.
February 22, 2008 2:23 PM
Quote from chance: Mr. Johnson, I'm not understanding how a screener could be expected to ignore a white powdery substance carried in a condom (a common method of drug transportation). I just don't see how it is possible for a screener to ignore what appears to be a blatently illegal item during the course of their duties."
Tell me this: what does it have to do with aviation security? And answer me another thing: is drug enforcement under TSA's scope?
The answer to both is no. You are searching for items on the prohibited items list. Even looking now, those things aren't on the prohibited items list. The checkpoint is not a dragnet to be used to search bags law enforcement would have to either get permission or a warrant to criminally search. Nor should it be a means for enforcing immigration (i.e. we caught the illegal immigrant leaving the country. :rolleyes:). There are other agencies that handle this. By exceeding the scope of the search, you're turning an administrative search for items on the list into a criminal search.
One of the things I think the court got wrong is that there is no means to withdraw the "consent" for the search when it changes scope. One should have to consent again to have the LEO search the bag or a warrant needs to be obtained. At least to my understanding, this part of the search has not been challenged in court yet (and should).
The item is not in plain sight. Just as a cop can't search my car without permission or a warrant unless he sees something in plain sight, the same things should apply. You need more than hearsay to establish probable cause.
For the record, I'm against illegal drugs. I'd like to see these guys locked up. However, I also think that TSA should let the DEA, FBI and other similar organizations handle this the right way. I'd hate to see a drug trafficker get off because the search was found to be illegal and the evidence inadmissable.
The constitution was written with the intent that some bad guys might not be caught because the law and constitution wasn't followed. They accepted this as a reasonable tradeoff so innocent people wouldn't be wrongfully imprisoned or worse. It's worked pretty well for over 200 years. I think it's shameful to throw that out.
Do it the right way. Yes, it sucks, but I'd rather have everyone's rights preserved rather than trample on people's rights when it's convenient to do so.
I don't think there's anything against law enforcement using drug sniffing dogs in an airport, providing it's not being abused to give false positives. A dog giving a hit would be probable cause and would be doing it the right way.
TSA needs to stop worrying about making the Big Catch® to justify itself and start doing what it was chartered to do in the first place: keeping threats to aviation security off of the plane. Do that successfully and TSA would justify its existence. Let law enforcement do its job.
Robert
February 22, 2008 2:35 PM
Laundered money?
How the heck can you tell if it's "laundered" or legit? I routinely travel with several hundred dollars cash, sometimes a thousand or more depending on where I'm going and how long I'm away from home. It's my emergency funds, I carry it in case of any kind of situation where credit cards don't work, or a hundred other emergency scenarios. I keep it in my front pocket, I guard it with my life, and never reveal that I have it as I pass through the checkpoint. I sure as hell won't lay the bundle on the X-ray tray, as that would guarantee it would be missing before it passed through the machine on the conveyor belt.
So I guess I'm asking this.... at what point can I feel safe carrying my money, and not be afraid of some TSO goon confiscating it under some trumped up suspicion of it being "laundered" drug money? And how much would the TSA consider "suspicious"? Or is that one of your insider secrets too?
February 22, 2008 2:47 PM
What happended to Kip's remarks regarding liquids?
February 22, 2008 2:57 PM
"Chance said...
Mr. Johnson, I'm not understanding how a screener could be expected to ignore a white powdery substance carried in a condom (a common method of drug transportation). I just don't see how it is possible for a screener to ignore what appears to be a blatently illegal item during the course of their duties.
Chance - EoS Blog Team"
Chance,
Here are a couple of suggestions:
1. Police searches always have involved what cops call something like the "elephant behind the bookcase" test. In simplistic terms, this means that you can't "find" anything not within the scope of your search in terms of size. In other words, if you're looking for an elephant, you can't look behind a bookcase because an elephant can't hide behind it. If you do look behind the bookcase and find a small nuclear weapon, that evidence is not admissible in court because the object of your search could not have possibly been concealed where you looked. And, you could become a defendant in a civil law suit as a result of your illegal search.
Now, you would say that there is no limit in size to a prohibited item, since nature's smallest substance, an atom of hydrogen, is flammable. The TSA needs to clearly define the smallest size of prohibited item that passes the giggle test before a judge does it for you. Anything smaller than this item can not be seized, and, you can't search in a location in which the prohibited item could not possibly be located.
2. An individual stopped by a cop has to be asked for consent to a vehicle search (however cleverly the cop will attempt to gain consent), can refuse, and can withdraw consent at any time. You people assert that we can't do any of these once we submit our bag to the conveyor belt. I dare say you people have now moved the no-stopping-the-search perimeter to at least the ID checkpoint or even further out if we're interrogated by a SPOT guy.
Since you have gotten away with #1 and #2, you run the risk of violating one's 5th Amendment rights. A person under SPOT interrogation can be intimidated and self-incriminate themselves without realizing they can just walk away or stop the questioning without a lawyer present. I have never seen a sign at any checkpoint in all the airports I have traversed stating that any non-TSA-prohibited illegal item (drugs, bootleg software, cash, ect) that is discovered incidental to a search will be turned over to a cop. So, without this disclosure, a person self-incriminates themselves believing that their bag of pot will get through the checkpoint because the TSA is only looking for prohibited items.
I'm sure most of your fellow screeners would applaud this discovery as "they got what they deserved." Many of your Constitution-loving fellow Americans view this as mission creep and unconstitutional.
My advice to you and to Francine is that you had better define some of these things, conduct an impartial legal review of your practices, and come back to within the law before a court or a future Congress does it for you. In the latter two cases, my guess is that you won't like the answer.
February 22, 2008 3:01 PM
Robert Johnson said...
TSO Tom,
I hope that you see what your colleagues are doing. There are good TSO's out there. However, there are a lot of them (some that even post in this very thread) that prove the points that people like me complain about.
You're stuck in a bad position of having to enforce policies that make absolutely no sense and do nothing for security. Complaints go with the territory.
I hope you see that it's a 2 way street. If TSA stops treating people like criminals and its employees stop abusing their authority, perhaps people will be more pleasant when they go thru a checkpoint.
The funny thing is, the world isn't THAT different prior to 2001 and after 2001. The difference is how we react to events that happened. Beforehand, we took them in stride. Now this country is running scared, constantly being kept in fear. TSA has a lot of responsibility in that.
People didn't gripe about security then. Security was largely fine ... it wasn't screening that failed on 9/11. That's not to say there wasn't improvements needed, but lines were a lot shorter and security wsa much less of a hassle.
So if you're facing a grumpy public, TSA really only has itself to blame.
Robert
February 21, 2008 11:56 PM
***********************************
Robert, seeing as you addressed your post to me, I feel compelled to respond, despite the fact that I said I would not post anymore. First of all Robert, let me say that I have seen some of my co-workers who were not the happiest of people and improvement is always needed this is true. But for the most part, I work with a fine bunch of people who care about the work they perform and give 110 percent effort daily. The complaints we get are from people who just don't want to cooperate, and this is what bothers us the most. I've said it before Robert, and I'll say it again, I get 4 compliments for every one complaint so that's not so bad. But when I come in here, and all I see is complaints, instead of suggestions on how to improve the process, it angers me. Secondly, the world has changed since 2001 and I'll tell youe exactly how it has changed. Prior to 2001, security at airports was for the most part a big joke! Yes the lines were shorter, but that's because the screening was not as thoroush as it is now. Video reviews of 9/11/01 showed that screeners at two of the airports involved did a sub par job at best. Also, the secondary screening process at that time was below standard by any means. Today's terrorist is more crafty, more daring and more willing to take risks. The one thing we need to be aware of more than ever now, is that a terrorist does not want to get caught and will do whatever he has to do to avoid getting caught. ANYTHING. So you see Robert, while the procedures may not make alot of sense to you, they have a purpose and that is to stop the terrorist from accomplishing his task. Security is a given no matter where you go, go to any court building, Federal facility, etc. X-ray machines, magnetometers are common place even in our schools! The best thing we can do is get used to it because its here to stay.
February 22, 2008 3:20 PM
Let’s see, the "Gripes and Grins" section of the blog is no longer active; the "Inconsistencies" section seems to be shut down as well. Kip's post on liquids seems to be missing althogether.
Let me ask: Could it possibly be that you have been blind sided by all the complaints you are receiving?
Could it possibly be that you put this blog up hoping that the apologists would outnumber the complainers and the complainers would end up going away?
Could it possibly be that you are learning that yes, the public opinion polls are true, and the TSA is right at the top of the most disliked government agencies?
When your chief counsel fails to address the biggest question of all, the fact that the TSA seems to feel it is not subject to any provisions of the Privacy Act, that does nothing to make anyone who comes to this blog believe that your stated reason for initiating it is valid: to facilitate an ongoing dialogue on innovations in security, technology and the checkpoint screening process.
All you are doing is digging yourselves a deeper hole. Perhaps it would be best to pack up your tents.
Let’s see, the "Gripes and Grins" section of the blog is no longer active; the "Inconsistencies" section seems to be shut down as well. Kip's post on liquids seems to be missing althogether.
Let me ask: Could it possibly be that you have been blind sided by all the complaints you are receiving?
Could it possibly be that you put this blog up hoping that the apologists would outnumber the complainers and the complainers would end up going away?
Could it possibly be that you are learning that yes, the public opinion polls are true, and the TSA is right at the top of the most disliked government agencies?
When your chief counsel fails to address the biggest question of all, the fact that the TSA seems to feel it is not subject to any provisions of the Privacy Act, that does nothing to make anyone who comes to this blog believe that your stated reason for initiating it is valid: to facilitate an ongoing dialogue on innovations in security, technology and the checkpoint screening process.
All you are doing is digging yourselves a deeper hole. Perhaps it would be best to pack up your tents.
February 22, 2008 3:28 PM
Your policies are overkill and ridiculous. If T.S.A. had a viable screening plan to begin with, then we wouldn't be in this situation in the first place. If public travel had been kept a "dress-up" affair as it used to be, then we wouldn't be in this situation in the first place. If the government had been pro-active instead of re-active, we wouldn't be in this situation!
February 22, 2008 3:50 PM
@Marshall...
With respect to the "Inconsistencies" and the "Gripes & Grins" posts, there are 543 and 406 comments on each. When you have that many comments, it takes too long to load the page. So we have developed a policy to limit the number of comments per post to something like 300 (I can look it up later and confirm the number).
http://www.tsa.gov/blog/2008/01/gripes-grins.html
So we have not closed down the conversation because we were "blindsided by the amount of complaints" we received. We did not post this blog so that we could hear about how wonderful we are. We setup this blog in an honest effort to open up a dialog with the traveling public. We view it as a two way street; you provide direct, unfiltered feedback on our policies and practices and we provide an explanation for why we do the things we do.
This is a good thing. A healthy organization should listen to feedback and make changes as necessary to improve the way we carry out our mission.
So... with respect to your suggestion that we "pack up our tents" and stop blogging; we will continue to engage with the public for the reasons articulated above.
If you have specific suggestions on how we can achieve our mission in a better way, please post here and let our collective community review and vet your ideas.
Regards,
-Neil
TSA Blog Team
February 22, 2008 3:53 PM
Why doesn't the TSA general counsel do something to prevent TSA employees from asking to copy down a passenger's identification when he/she requests a complaint form?
What are the consequences to TSA employees who do this?
Also, I'm still waiting for a response to the complaint I filed eight months ago.
February 22, 2008 4:19 PM
I fly from coast to coast 3-4 times per year and have found most of the TSA agents that I've come into contact with to be courteous and willing to to answer my questions.
February 22, 2008 4:22 PM
Quote from Tom: "First of all Robert, let me say that I have seen some of my co-workers who were not the happiest of people and improvement is always needed this is true. But for the most part, I work with a fine bunch of people who care about the work they perform and give 110 percent effort daily. The complaints we get are from people who just don't want to cooperate, and this is what bothers us the most. I've said it before Robert, and I'll say it again, I get 4 compliments for every one complaint so that's not so bad."
Please keep in mind that 20% of the airlines' customers make up around 80% of their revenue. These are the frequent travelers who deal with TSA much more often and also are going to be more critical because they see what's going on. So if you're seeing a 4:1 ratio of compliments to complaints, this jives with the fact that most of the people who compliment you don't have to deal with TSA on a regular basis.
Additionally, as test results indicate, TSA misses 4 bombs for everyone TSA it catches. Is that a good ratio too?
Keep in mind that people will treat you how you treat them. TSA sets the tone at the checkpoint. If there are barkers yelling at people and the staff is surly, guess what you'll probably get. Believe it or not, I'm friendly with security as long as they're friendly, stick to the rules and don't make it up as they go. SLC has been particularly good at this ... very well run as far as TSA goes. And yes, I've actually filled out compliment forms there. However, do something like separating me from my belongings during a secondary and give me crap when I mention it and yes, I will have an attitude at this point.
Quote: But when I come in here, and all I see is complaints, instead of suggestions on how to improve the process, it angers me.
Did you ever think that maybe TSA and even Congress hasn't taken the suggestions seriously? I've written some well thought out suggestions to my Congresscritter that were supposedly passed on to Kip. I have a friend who's an aviation consultant who has proposed a few times over the last few years a relatively inexpensive device that would test liquids. TSA and Congress weren't interested.
Bottom line is that TSA does what it wants to do, everyone else be damned. I'm not convinced TSA really wants to listen.
If TSA really wants to take suggestions, perhaps they sh