Furthering the Dialogue on IDs

This post is from TSA's Chief Counsel Francine Kerner. It was originally intended to be a response in the comments section to answer some ID questions, but we thought it deserved its own post. Thanks to Francine for taking the time to provide this well thought out and very informative response.

I would like to share my perspective of this issue and my legal analysis. From my perspective, in considering these matters, we need to go back to first principles: what security goals are we trying to achieve? One goal is to ensure that bad things are kept out of the sterile area. Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport.

To achieve the second goal, prohibiting entry by known or suspected terrorists (regardless of what they are carrying), we perform or cause others to perform an identity check against government databases. Identity vetting of airport or airline employees is a rigorous process that is based on a collection of fingerprints, a criminal history records check, and a security threat assessment.

Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying.

It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification.

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function. More recently, TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry. All of these steps have been taken to improve aviation security. Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.

I hope my response furthers the dialogue on these important issues. Thank you again for raising your concerns.

Francine Kerner

EoS Blog Contributor

Why We Do What We Do: When Security Officers Find Illegal Items at the Checkpoint

A number of readers have raised questions about TSA's legal authority to make a referral to other law enforcement entities when evidence of a crime unrelated to aviation security is discovered during the screening process. This post explains that Transportation Security Officers (TSOs) are required to make such referrals. TSO referrals have led to the arrest and/or conviction of individuals for serious crimes such as illegally possessing narcotic drugs, transporting child pornography, and bulk cash smuggling.

As you know, the job of our security officers is to screen passengers and their belongings for weapons, explosives, and other prohibited items that pose a risk to transportation security. In the course of performing that responsibility, security officers sometimes come across illegal items that are not directly related to transportation security. For instance, last month in Guam, TSOs screening checked baggage discovered almost $900,000 in U.S. currency along with an undisclosed amount of crystal methamphetamine. Although anyone in the United States is free to travel with currency, the failure to make a currency report to Customs and Border Protection when leaving the country with more than $10,000 in cash is a violation of federal criminal law. 31 U.S.C. §§ 5316 and 5322. Attempting to smuggle bulk cash out of the country also violates 31 U.S.C. § 5332, a felony that carries a possible prison term of up to 5 years.

As a component of the Department of Homeland Security, TSA's standard operating procedures require Transportation Security Officers to report evidence of potential crimes to the appropriate local, state or federal law enforcement authorities. When a TSO opens a bag and discovers a large stash of ecstasy or obvious child pornography, he or she is not permitted to close the bag and turn a blind eye to these serious offenses. Instead, a TSO is required to call for law enforcement support. It is up to the responding law enforcement authorities—not our TSOs—to decide whether an arrest is warranted.

TSA's practice of referring evidence of criminality to other law enforcement entities is not only good public policy, it is fully supported by the court decisions. The courts have recognized that illegal items found during a warrantless “special needs” or administrative search, such as the search of an airline passeger's luggage for weapons or explosives, may be turned over to the police. See, for example, United States v. $557,993.89, More or Less, in U.S. Funds (pdf), 287 F.3d 66, 81-83 (2d Cir. 2002) (plain-view seizure of large number of money orders valid because airport security screeners permitted to search briefcase for weapons were not required to ignore evidence of crimes).

This case and others apply the principle of the plain-view doctrine, which allows a police officer to seize an unlawful item that he discovers in plain view, even if he comes across the item while carrying out unrelated duties. For instance, police who enter a residence in response to a call for medical assistance may seize contraband they see in plain view. See, for example, United States v. Quezada, 446 F.3d 1005, 1008 (8th Cir. 2006) (seizure of shotgun in plain view valid because officer entered apartment with reasonable belief that someone was inside but unable to answer).

The incidental discovery of illegal items in the screening of carry-on bags, is not, as one post suggested, akin to forcing a motorist to open his trunk at a sobriety checkpoint. Police officers conducting field sobriety tests at a vehicular checkpoint have no need to look in the trunk of a car to determine if the driver is impaired. By contrast, TSA screeners need to inspect every carry-on bag for weapons, explosives, and other prohibited items that pose a risk to transportation security. To do so, they must examine all compartments of the bag that are capable of concealing such items. If their task causes them to discover evidence of crime, they must ensure a prompt law enforcement referral.

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.