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Furthering the Dialogue on IDs

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Monday, August 11, 2008
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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

Comments

Submitted by CBGB on

I would like to share my perspective as well but nobody appears to be approving comments anymore...

Submitted by Miller on
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.

Identity verification process? Pray tell how do you do that? How do you verify that an ID is valid? How do you verify that the person standing there with an ID is indeed that person and not someone who closely resembles the person on the ID?

The answer is you can't and this is just another act in the security theater.
Submitted by Jim Huggins on

Francine,

I would like to comment on one thing you said above:

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.

The problem with this argument is that, because this responsibility is shared, it introduces a security hole. The air carriers compare a passenger's name to the watch-lists and print a boarding pass, while TSA staff compare the passenger's identity documents to the boarding pass. The problem is ... no-one is verifying that the same boarding pass is used in both steps.

Submitted by Anonymous on
Identity verification process? Pray tell how do you do that? How do you verify that an ID is valid? How do you verify that the person standing there with an ID is indeed that person and not someone who closely resembles the person on the ID?

Because when TSA rolls out Part Deux of their master plan, you'll be submitting DNA samples, fingerprints, iris scans, etc, each and every time you fly. And when you start complaining about it, they'll just say "hey, you guys told us that picture identification wasn't good enough!"
Submitted by Anonymous on
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.

Again, I am still hostile towards what I view as security theater, but thank you for putting this point forward. Regardless of my views on the merit of the argument, I'm glad that some explanations are being given. Helping the public understand *why* things are happening is just as important as *what* is happening.
Submitted by Seth on

Since when has citing Google been a reasonable judicial technique?

I've also just reviewed 49 C.F.R. § 1540.5 again and cannot find the word "generally" used anywhere in the definition of the screening process. In fact, the only place that term is used in in defining the sterile area, as follows:
Sterile area means a portion of an airport defined in the airport
security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA.
Based on this section it seems somewhat ironic in its usage in that it implies that the TSA doesn't have complete control, just that they "generally" have control.

Finally, the current "systems, measures, or procedures" do not actually verify the identity of anyone. They do ensure that I can carry a piece of paper and a piece of plastic that have the same name on them, but it certainly doesn't ensure that I am the person named on either of those documents or that the person named on those documents has actually purchased a plane ticket.

Please end the farce and admit that this whole exercise in fear-mongering has been a miserable failure, put the agency and the American people out of our misery and let's all move on...

Submitted by IDisntSecurity on
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.

Am I to assume that the TSA is classifying passengers as cargo, and as such feels the use of regulations regarding cargo screening is appropriate?

Surely as chief counsel, you can point to case law to support your assertions?
Submitted by Anonymous on

Francine,

Thanks for attempting to put this endless debate to rest. I appreciate how you have pointed out that 49 C.F.R. § 1540.5 merely sets forth definitions. For some reason, the tin foil hat club here seems to think they can lay that tin foil hat on that definition section and completely disregard the rest of 1540...you know, the part that actually talks about systems, measures, procedures, blah, blah ad nauseam and the requirement to comply with same. I grow tired and weary of the utter ignorance and lack of understanding of these regulations that the usual gang demonstrates. Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs! Anyway, I digress… thanks...and by the way...I get it!

Submitted by Anonymous on

I generally really enjoy reading this blog and feel that the tone is often conversational which has really changed my view of the TSA for better. Unfortunately this post feels very dictatorial and "let me tell you kids how things work" which once again makes me feel like it is "us vs them". Just food for thought for future guest posts.

Submitted by Tomas on

Thank you Francine for taking the time to explain your view of this discussion from the TSA's side.

I note in a previous reply that someone legitimately challenged your addition of the word "generally" where it does not exist in the original document. This is a valid way to sway opinion in oral argument, or when there is inadequate time for the opposition to fully research sources, but fails when there is time to validate one's statements.

You said:

"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 you were challenged with:

"I've also just reviewed 49 C.F.R. § 1540.5 again and cannot find the word "generally" used anywhere in the definition of the screening process."

Without that word added, the source document actually says something quite different from what you insist it says.

If your argument is so strong and so straightforward that no one could doubt your interpretation, you would not have to shade the truth by adding words not actually included in the source.

The technique is akin to "winning" a debate in school by "quoting" text from an historical agency that never existed. Of course your opponents can't refute something they can't find.

Thing is, we are no longer in school, and we have access to the source and time to examine it.

Please don't assume we are stupid. Thank you.

=|=

I'd also like you, and the other readers of the TSA's Evolution of Security blog, to remember that having any lawyer tell you what the law means, especially one with a horse in the race, does not make it true.

One can regularly find lawyers to represent both sides of ANY argument.

It is the judge, not the lawyer, who has the privilege of ruling.

Submitted by Phil on

Blogger Bog quoted TSA's Chief Counsel Francine Kerner as having said:

"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."

It's my understanding that airlines were not required to confirm a passenger's identity, only to ask but not require him to present credentials that could be used to identify him. Is this correct?

Also, were they required to check passengers' names against the government blacklists, or to check ticket purchasers' names against the blacklists?

"More recently [than the last year or more], TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry."

Yet your written policies still state that ID is required, then several sentences later, state how a passenger may pass the checkpoint without ID. Why do you continue to misinform people about your policies?

Submitted by Abelard on
Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

Except, of course, that more and more states are opting out of the REAL ID program because the federal government foisted it upon the individual states as an unfunded mandate.

We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

And the big plan to stop terrorists from using a private jet secured through general aviation channels would be what?

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function (check IDs).

Of course, they aren't checking those IDs against the no-fly list or anything like that. They shine the little blue light on my drivers license and send me to metal screening.

Where is the security between obtaining the boarding pass and getting to the ID checkpoint?

There isn't any. So, checking ID with a boarding pass does not insure that the person who is listed on the ID or boarding pass is indeed that person.
Submitted by Winstonsmith on

Francine, you say:

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.

It is well established that not every employee nor every entrance into the sterile area to an airport is screened each and every time it happens as it ought to be if security is the priority you say it is. You suggest that the screening might happen in other places that are out of public view, but it is hard to reconcile that with the sight of an individual walking through the checkpoint with no screening or up the exit aisle with just a wave at the security guards. This is not secure. You have effectively created a two-tiered system of access based not on security, but on the convenience of airport employees.

So even if we stipulate that TSA can implement ID checks as part of its screening measures, which I personally find questionable, but we'll suppose that it can for the sake of argument here, in order to maintain equal protection under the law as required under the 14th amendment to the Constitution (remember that pesky document that does not seem to apply to the current executive branch or its institutions?) all individuals regardless of status would have to undergo the same scrutiny, regardless of their status or how many times that person may have had to undergo the check during the day.

But that's impractical you say. It'll slow up the line you say. We know and trust these people you say. We run background checks on these people you say. Balderdash I say! If you screen me each and every time I go through knowing full well that I am not a threat -- after all I've flown 1000 times and I've never caused a problem except to make the odd snarky remark at the officious grunt behind the id checking podium if I'm in a bad mood, you can screen the people who by the fact that they are well known at the airport could easily be bought off or blackmailed into causing problems. If efficiency is the problem, then set up a special line for the employees but do not suggest to me that this is a problem that is "under study" as the TSA did a few months back.

You as well as anyone are aware that without the law you cite that the ID checks would not be upheld by the courts, and even with the law you cite may not be upheld in the courts. The problem is that up until now no one has gone through the process to get the laws tested and challenged by the courts.

And finally, I have done quite a bit of work in the internet industry and have attended law school, and the last time I checked, google searches were not recognized legal authority. Please do not insult the public's intelligence by using them in your arguments.

Submitted by Sandra on

Google? Google? Francine is citing Google as a basis for substantiating her position? Would that fly in law school, Francine? I think not.

And, Francine, we're talking about people here NOT cargo.

Submitted by Sandra on

A brave "anonymous" person said:

"Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs!"

Six years ago this blog was not available to have a dialog, so that point is not relevant. Additionally, there are attorneys participating who are doing an excellent job of rebutting Francine’s position.

Any thinking person knows the ID “verification” procedure can be circumvented very easily and thus, all the legal citations in the world aren't worth a darn.

Submitted by Anonymous on

TSA might need to find a new lawyer. Like all of the political appointees these days Francine does not appear to actually be qualified for job. I don't mean that as a ad homium attack, simply a statement of fact supported below. [I freely admit for example that I am not qualified to be a microbiologist for the USDA.]

Case in point: "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."

The definitions section of a law is not there for our amusement, it is an integral part of the law specifically for this reason, so that lawyers don't just make up definitions of key words. The definition of screening in the law takes precedence over any random definition you can find somewhere on the net or even in standard published dictionaries, especially when you are just quoting one of your lackeys. If a law choose to define red as "a temperature just below freezing" then that is what it means in the following section.

Submitted by RB on

RE: 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.
...............................
I find the above statement to be lacking in the truth department.

Francine, are you saying that all airport employees/workers and their property are inspected each and every time they pass from the "not sterile" side of the airport to the "sterile" side of the airport?

Is all cargo is inspected before entering the secure area?

Are you sure?

One of the other 5 or 6.......

Submitted by Bob Eucher on

Can you tell me and the others, does TSA have any real "security specialists" on the payroll? Almost every blog posts shows just how ridiculous this whole agency performs some very basic functions. I am willing to bet, that you would FAIL a test involving ID checks. It has been pointed out numerous times that you are trying to match a known (ID card) to an unknown (boarding pass). To any reasonable person, this would make sense, but somehow you just want to ignore that simple fact. WHY?

Laws or no laws, or if you can or can't really doesn't matter here, what you are doing will NOT stop a determined and "adaptive" (your words) terrorist.

Submitted by Andrew on

How do you reconcile this reading with the 9th Circuit's holding in Gilmore, which stated that ID verification was constitutional only because an alternative method (extra screening) was allowed for those who did not wish to show ID?

(and for the record, to the above poster who talked about "Armchair JDs"... I hold a JD, an LLM, and am admitted to the bar in 3 states. Just to let you know.)

Submitted by Anonymous on

Furthering the Dialogue on IDs

This post is from TSA's Chief Counsel Francine Kerner.


You DHS/TSA guys might need a better lawyer!

Google as a leagal resource?

Adding a word to make 49 C.F.R. § 1540.5 say something it does not!

Is this the honesty and transparency that TSA wants to display to the public?

Submitted by Anonymous on

Francine and others:

I’ve almost given up on engaging on the ID issue because it seems my view and TSA’s are too diametrically opposite to even converse. But I’ll try one more time:

Here’s a hypothetical. Assume temporarily that the watch-list matching process is completely accurate and there are no false positives, since supposedly that is TSA’s goal. And suppose that US citizen John Q. Suspicious purchases a ticket to fly domestically. Assume he is on the no-fly list. Accordingly, he cannot get a boarding pass and cannot fly.

But, although John is on the no-fly list, he is not suspected of committing any actual crime. So there is no warrant for his arrest. (You cannot claim that this scenario is impossible on the grounds that all no-flys are wanted criminals, because they are not. If indeed all no-flys were wanted criminals, then the no-fly list would be a subset of the NCIC and other most-wanted lists, and the response to a no-fly match would be to call the police, not deny a boarding pass.)


Questions:

1) Why is it OK that John is denied the ability to use commercial aircraft by the US Government with no due process and no means of redress?

2) How is the Constitutional guarantee that “life, liberty, and property” shall not be denied without due process consistent with John being denied the liberty of using commercial air travel with no due process?

3) The entire point of having multiple branches of government is checks and balances on the mistakes, both honest and dishonest, of the other branches. Why should we trust DHS/TSA and or DOJ/FBI to create and execute a secret blacklist with no oversight and no means of redress through the courts?

4) You clearly believe that the need for security justifies subjecting all travelers to a blacklist check. Where should the line be drawn? Should we also check all airline passengers for outstanding warrants? What about sex-offender status and registration compliance? How about outstanding child-support payments? Outstanding speeding tickets? Outstanding library fines? Why not just set up checkpoints to check all of these things at the entrances to interstate highways? If the next attack happens at shopping malls, will DHS suggest blacklist checks at mall entrances? Where do you draw the line?

5) Do you understand the dangers of creating a “papers please” society where proper credentials and permission are required to pass checkpoints for travel (or other legal activities)? Do you understand how easy it would be for a future administration to use such infrastructure to deny freedoms to individuals who have done nothing wrong? Do you understand that there is strong evidence that such denials are already happening for politically motivated reasons—e.g., the CNN reporter who mysteriously started matching the watch list only *after* he published an article critical of DHS/TSA?

Submitted by Anonymous on

"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".

Can you please explain me how TSA going to protect us from UNKNOWN terrorist and keep them out of the secure areas of the airports and off airplanes? Basically you are telling us that TSA protect us only from well known terrorist, and the government databases is only reliable source for verification?

Submitted by Anonymous on
you are idiots, and here's why: "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."


No, TSA does not ensure that the name provided to the carrier matches the ID the passenger is carrying. TSA only checks that the name provided by the potential terrorist, as reflected by the boarding pass printed by the potential terrorist, matches the ID provided by the potential terrorist.

This old security hole was demonstrated years ago by the fake boarding pass stunt. That they haven't patched this stupid hole since then shows that TSA's grand ID program is just theatrical hype.

That's why y'all are idiots.

In other words, TSA is idiotic because TSA management counts the lock and the door as two "layers of security" when the lock isn't even attached to the door--you just need to write yourself a note that you opened the watch-list lock so the TSO can wave you through the ID-checking door.
Submitted by HSVTSO Dean on
Winstonsmith wrote:
...or up the exit aisle with just a wave at the security guards. This is not secure.

Not to mention the fact that it's very much against the rules. Whether or not the specific airport decides to allow it for convenience's sake, it's still very much a violation of protocol.
Submitted by Trollkiller on
Anonymous said...

I generally really enjoy reading this blog and feel that the tone is often conversational which has really changed my view of the TSA for better. Unfortunately this post feels very dictatorial and "let me tell you kids how things work" which once again makes me feel like it is "us vs them". Just food for thought for future guest posts.

Before you take too harsh a view of Francine's post you need to know that originally the bulk of her post was a reply to this question I posed directly to her.

"Dear Francine,

Thank you for the response to the blog's top ten questions. Unfortunately the response to the forced ID verification did not address the main issue. I blame this on the fact your office most likely received a very sanitized and generalized version of the question. In an effort to clear this issue I will ask the question.

In C.F.R. 49 § 1540.5 the definition of a sterile area clearly states the TSA generally controls access to the sterile area through screening. As far as I can see this does not allow for a forced ID verification, as a normal criterion for granting access to the sterile area, as it does not inspect for weapons, explosives and incendiaries. How does the TSA reconcile the forced ID verification with the definition of a sterile area?

C.F.R. 49 § 1540.5
Sterile area means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property.

C.F.R. 49 § 1540.5
Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.

I thank you in advance for your reply."

I think now that you have seen the question I asked her and read her response to my question, that was copy/pasted for her post, you will see she did not intend to make it a "let me tell you kids how things work" post.
Submitted by Anonymous on

"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."

Why do you and other TSA employees continue to pretend that this somehow enhances security? It's telling that for all of the bold assertions TSA makes about ID, it cannot provide even the most tortured argument explaining how presenting an ID either verifies identity or enhances security. You're lying, we know you're lying, and we'd like you to stop lying and stop wasting out time with useless security theatre.

Submitted by Anonymous on

What is the official TSA policy on showing IDs? The policy announced with much fanfare by TSA, and torn apart with logic and facts by patriots on this blog, is inconsistent with descriptions of policy by TSO Dean in the comments of this blog. Please clarify this with an official post, not in comments, and explain the reasons for the change.

Submitted by Phil on

Thanks, Dean. I was fairly certain of all that, but I hoped Ms. Kerner would chime in.

As for the second answer, Blogger Bog quoted TSA's Chief Counsel Francine Kerner as having said:

"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."

It seems that she was mistaken, as air carriers were not, prior to September 11, 2001, required to confirm a passenger's identity by examining any form of credentials used for identification (nor are they required to do so now).

Additionally, I believe that any checking of names against government blacklists that the carriers perform is a check of ticket purchasers' names, not necessarily passengers' names. We have no guarantee that they are the same. It's a fine point, but Ms. Kerner makes a living understanding fine points.

Ms. Kerner, why are you attempting to mislead us?

Submitted by Anonymous on
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 add to the burgeoning list of questions: where did this goal come from? The good gentlemen above me have already shown that it has no basis in law, so was it handed down by YHVH, or what?

What justification can you present that confirming ID does even a tiny amount of good? All we see is invasive and odious practices meant to defend a system which can be gamed by a five year old and serves no real purpose. If Osama bin Laden himself sat next to me on a plane, so long as he's been properly screened for anything that could present an immediate danger to myself or others, why should I care? He'd probably be much more pleasant and polite that the sweaty fat guy with the two screaming kids I always end up with.

What should I call this type of "goal?" It's not a law, but it's enacted by agents of the government and not obeying is quite likely to get me arrested or at least "voluntarily detained" while my plane leaves without me, so it has the force of one. Its justifications and limits aren't publicly written down anywhere, so it's not a regulation, so what should we call it? Secret law? Double-plus guideline?

Most importantly, what can I do to remove this goal? It's not in any law, so writing to my congressman will do nothing. HE'S just as aggravated by you people as I am. As a God-fearing, hot dog-eating, Walmart-shopping American Citizen, what do I need to do to repeal this dangerously overreaching yet ridiculously impossible physical incarnation of Orwellian black humor?
Submitted by Phil on

Dean, I misread part of your reply. Upon further examination it seems to me that you've suggested that airlines check against DHS blacklists neither the ticket purchaser's name nor the passenger's name, but the name of the potential/intended passenger as provided by the ticket purchaser.

My point is the same: Ms. Kerner's statement was misleading at best.

Submitted by Timothy Clemans on

Does the TSA have employees who test the system with invalid IDs, invalid boarding passes, and reports of lost ID?

Submitted by Christopher on

49CFR1540.5 and 49CFR1540.105 do not limit the TSA to only screening individuals and property for weapons, explosives, and incendiaries when it is controlling access to sterile areas.

49CFR1540.105 says people entering sterile areas must comply with "systems, measures, or procedures being applied to control access."

The plurals "systems, measures, or procedures" allow for multiple means of controlling access to sterile areas.

49CFR1540.5 defines a sterile area as one where "the access generally is controlled by TSA ... through the screening of persons and property."

The inclusion of the word "generally" means the TSA is, while expected to commonly use screening, not prohibited from using other means to control access too.

For what it's worth--and I like to think that a good legal background is worth something when it comes to legal analysis like this--I am attorney who graduated from Georgetown.

Of course, not everything that is legally permitted is good or effective.

Submitted by Anonymous on

"Does the TSA have employees who test the system with invalid IDs, invalid boarding passes, and reports of lost ID?"

No idea, but years ago they had new hires (I knew a guy working in IT) test security for a while.

Submitted by Trollkiller on
Anonymous said...
Francine,

Thanks for attempting to put this endless debate to rest. I appreciate how you have pointed out that 49 C.F.R. § 1540.5 merely sets forth definitions. For some reason, the tin foil hat club here seems to think they can lay that tin foil hat on that definition section and completely disregard the rest of 1540...you know, the part that actually talks about systems, measures, procedures, blah, blah ad nauseam and the requirement to comply with same. I grow tired and weary of the utter ignorance and lack of understanding of these regulations that the usual gang demonstrates. Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs! Anyway, I digress… thanks...and by the way...I get it!

C.F.R 49 1540.5 does not merely set forth definitions it also sets forth limitations.

C.F.R 49 1540.5 is a part of that law and therefore carries as much weight as any other part of that law.

Just out of curiosity please state where in C.F.R 49 1540 does it describes systems, measures, and procedures. And please point out where in C.F.R 49 1540 it allows for the limitations in C.F.R 49 1540.5 to be overridden.

I am sorry you are tired of the usual gang daring to ask questions that YOU can’t answer. Prove me wrong on this issue, I dare you.

Yes, we are six years into this and just now people are looking up the regs. Ask your self why. Perhaps six years worth is about all of this foolishness that we can stand. Maybe it is the fact that up to this summer there was NO forced ID verification in violation of the law. Maybe it is the fact that the TSA just created this blog to get our feedback. (Love him or hate him, Kip did at least one thing right)

I may be wearing a tin foil hat, but you are talking out of yours.
Submitted by CBGB on

Why are you trying to black hole my comments? People have had comments responded to comments that weren't here when mine were submitted, and had them approved. I have broken none of the rules you have posted for comments, AND the delete counter doesn't show that my comments have been deleted. Post them or I will find another more public avenue of adressing them. I will delete this comment once my other one shows up.

Submitted by Anonymous on

Everybody needs to repeat this little saying 100 times to themselves in the mirror:

"A chain is only as strong as its weakest link."

TSA seems to specialize in making chains that contain missing links.

Submitted by IAH Flyer on
Francine said: “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.”

A basic rule of construction concerning the interpretation of CFR’s is breached in your analysis. CFR’s are to be interpreted in the strictest sense especially when the regulation involves restrictions on individuals and their actions. The agency that promulgates the regulation also is the drafter. As such, if the agency wanted to make the rule broader, it should have drafted it as such.

49 C.F.R. §1540.105(a)(2) addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is your limit for the sterile area.

You also conveniently left out two words (among others) when you state “that access to the sterile area is ‘generally’ controlled through the ‘screening’ of persons and property.” After the word “controlled”, the words “by TSA” were not included. As such, you give the impression that the word “generally” refers to the screening process when in fact the reference is to the TSA. That is not only disingenuous, but wrong. Boundaries are set for screening of persons and property.

We also don’t have a reason to go to Google for definitions of “screening.” It is contained in the CFR itself. If that definition is too restrictive, you just can’t conveniently ignore it; you need to go through the process of amending the regulation. In that manner the Google definition can then be included if you feel it is appropriate to accomplishing the TSA mission. Are you not amenable to that?

I had a very seasoned attorney once tell me that if he was given the opportunity to draft a document, as long as he was able to have free reign over the definitions section, then he would let the other side’s attorneys draft the rest of the document. Definitions are a critical and integral part of a legal instrument.
Submitted by Anonymous on

I can see how an airline can deny boarding to someone since it's their private business, but I can't see how the US govenment can legally deny boarding on PLANES THAT ARE NOT OWNED BY THE US GOVERNMENT. If an airline were to tell me I can't get on their plane, fine. But the government shouldn't be able to.

Submitted by Abelard on
Whether or not the specific airport decides to allow it for convenience's sake, it's still very much a violation of protocol.

Therein lies a huge problem aggravated by a federal agency that doesn't seem to care or mind that the protocols aren't uniformly followed at each and every airport.

Why aren't regional TSA managers (or however the structure is manifest) terminated or severely demoted for allowing non-protocol activities to happen? My last trip out of Sky Harbor in Phoenix saw what winstonsmith describes: people being waved through security without screening and being allowed direct access to the sterile area.

That TSO who allowed that to happen should have been immediately terminated. If he was directed by the local TSA manager to allow that, then the workers gets a write up and the manager gets dismissed. And up through the chain of command.

But it's not going to happen because as far as I can tell because the dead weight at the top (that's you, Chertoff) is probably too busy lining up a K Street job for his sudden change of employment status in January instead of acting like a cabinet member and doing his actual job.
Submitted by Anonymous on

Shut the blog down. Use your money and effort on got feed back.

Submitted by HSVTSO Dean on

Before everyone gets all "wtf censorship!" because of my suddenly missing comments-- I specifically asked for them to be removed.

Anyway.

Phil wrote:
Thanks, Dean. I was fairly certain of all that, but I hoped Ms. Kerner would chime in.

With the way the EoS team doesn't make appearances in comments anymore? You're joking, right? :D

Phil wrote:
It seems that she was mistaken, as air carriers were not, prior to September 11, 2001, required to confirm a passenger's identity by examining any form of credentials used for identification (nor are they required to do so now).

I think there's a misunderstanding arising from the assumption that she meant the check-in procedure.

This is how I interpreted it, and I'll be using lots of words to try to get my point across, so bear with me:

And I base this argument entirely upon what she said at the start of the very next paragraph, which I will post here for reference.

Francine wrote:
Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function.

Which leads me to believe that when she wrote...

Francine wrote:
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.

...right before it, that she was, in fact, speaking of two separate and different things.

Before this past year, the role of what is now known as the Travel Document Checker was performed by the airlines. They either contracted it out to private security companies or had their own people there, however they chose to do it (in Huntsville's case, they worked for a company called DGS, the same people that do baggage-handling for Delta Airlines here at HSV), but the fact remains that they were asking the passengers' for their IDs, and that they were confirming the IDs as matching the passenger and the name on the boarding pass.

Prior to 11 September 2001, the FAA released a Security Directive which pretty much started the requirement of airlines to ask for ID at check-in, and confirm that the passenger's name matches the information put into the system and checked against the no-fly list. This occurred sometime in the mid-90s (I haven't been able to lock down a set date).

Later (and I can't verify this, search as I might) the FAA supposedly rescinded this requirement, but the airlines apparently continued to request ID from the passengers.

When TSA came in and took over control of screening operation oversight from the FAA, they then issued a Security Directive directing the air carriers to continue the practice once more. Basically the same thing the FAA did, only different letterhead.

...Okay. Is everybody confused yet? :D

Timothy Clemans wrote:
Does the TSA have employees who test the system with invalid IDs, invalid boarding passes, and reports of lost ID?

Yes; Yes; Probably not.

Whether it's on a national scale or just something our bosses do locally though, I couldn't tell ya'.

Submitted by Anonymous on

Nice move, TSA.

http://www.usatoday.com/tech/news/surveillance/2008-08-12-tsa_N.htm?loc=...

"The Transportation Security Administration has collected records on thousands of passengers who went to airport checkpoints without identification, adding them to a database of people who violated security laws or were questioned for suspicious behavior."

Apparently since this has become public, the Kipster has said that those name would be purged soon - wanna bet?

Submitted by NoClu on

Fliers without ID placed on TSA list---USA Today
http://www.usatoday.com/tech/news/surveillance/2008-08-12-tsa_N.htm?loc=...

"The agency then began adding names of people who were questioned by police but not necessarily charged after an airport screener saw them acting suspiciously."

Wow. Classic retaliation and persecution based on an individuals opinion. Even with the flip-flop by Kip, this is a nasty bit of data-gathering and persecution by the agency.

The article also says that the TSA "has been expanding an electronic database that started a couple of years ago to keep track of people..." I though the TSA didn't claim ownership of the don't fly or watch list. Just how many of those are there?

Please address this topic in an upcoming blog entry.

P.S. sorry for the double post. I first added this to an older thread.

Submitted by Anonymous on

So, according to USA TOday TSA has been adding personal information on people who lose or misplace IDs to the watch list (a watch list that TSA has said it doesn't maintain).

Further, if a person is identified by a SPOTter and/or a screener (something that is based SOLELY on the opinion of one person) and is questioned by police, that person's details are added to the same database - and the database is available to police everywhere. That means a person who is not doing ANYTHING wrong may find themselves identified as a possible threat (and subject to additional scrutiny) for 15 YEARS.

IIRC, y'all said here that you weren't keeping the watchlist.

So:
1) Why should we believe what you write? It appears more and more to be propaganda.

2) How do we restore our good name and civil liberties? According to DHS, we don't have either the right to know we're on this database NOR do we have the ability to challenge it.

3) When will you honor the Constitution and treat Americans as being innocent until PROVEN guilty in a court of law?

4) Why was the database tracking policy changed ONLY AFTER USAToday was about to publish the story? Why does it take potential embarrassment to change an unAmerican policy like this?

Sign me: disgusted

Submitted by Tso Rachel on

"I can see how an airline can deny boarding to someone since it's their private business, but I can't see how the US govenment can legally deny boarding on PLANES THAT ARE NOT OWNED BY THE US GOVERNMENT. If an airline were to tell me I can't get on their plane, fine. But the government shouldn't be able to."

Yeah, it really pisses me off that the DMV and police can moderate my driving when I bought the car from Honda. JEEZ!!!

Can you see the logic...?


Yes, I think some power-hungry TSOs have used the "Do you want to fly today" line WAY too often. In my opinion, that should be reserved for superviors and managers, and only in EXTREME situations. I myself have never used that line, and never plan to use it. I don't believe it's my place. I will call a supervisor over if something ever escalates beyond my control.


When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block.

Submitted by Sandra on

So, have those of us who comment here also been put on the watch list?

Submitted by Tso Rachel on

"So, according to USA TOday TSA has been adding personal information on people who lose or misplace IDs to the watch list (a watch list that TSA has said it doesn't maintain).

Further, if a person is identified by a SPOTter and/or a screener (something that is based SOLELY on the opinion of one person) and is questioned by police, that person's details are added to the same database - and the database is available to police everywhere. That means a person who is not doing ANYTHING wrong may find themselves identified as a possible threat (and subject to additional scrutiny) for 15 YEARS."


That really disturbs me. I certainly hope it's not true.

Submitted by Robert Johnson on
Quote from Anonymous: Nice move, TSA.

http://www.usatoday.com/tech/news/surveillance/2008-08-12-tsa_N.htm?loc=...

"The Transportation Security Administration has collected records on thousands of passengers who went to airport checkpoints without identification, adding them to a database of people who violated security laws or were questioned for suspicious behavior."

Apparently since this has become public, the Kipster has said that those name would be purged soon - wanna bet?"

I think this confirms a lot of my analysis I posted on the PIA in the "Top 10 Questions" thread.

Robert
Submitted by Robert Johnson on
Quote from TSO Rachel: Yeah, it really pisses me off that the DMV and police can moderate my driving when I bought the car from Honda. JEEZ!!!

Can you see the logic...?"

I can see your lack of logic.

You're comparing the request to operate a heavy machine moving at a high velocity and the potential to kill people and damage property to showing up and asking to ride something that requires nothing more than a ticket.

Operating a car is obviously a privilege. Riding in one isn't as it doesn't need a license and cannot be denied by a government without due process (i.e. restricted to limited movement as a part of a sentence, house arrest, etc).

TSA is doing the latter.

Yes, I think some power-hungry TSOs have used the "Do you want to fly today" line WAY too often. In my opinion, that should be reserved for superviors and managers, and only in EXTREME situations. I myself have never used that line, and never plan to use it. I don't believe it's my place. I will call a supervisor over if something ever escalates beyond my control."

You seem to be rare in this view. Wish more took this view.

"When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block."

Glad you feel safer. Yet no one at TSA has been able to actually prove how it MAKES us safer. Just "we say it does" and "trust us." Neither is a valid answer. Your answer here shows that it is security theater

The roadblock is only a road block to the honest people. The silly ID schnenangigan can easily be bypassed by a determined criminal or terrorist, and you wouldn't be the wiser because they'd try to blend in, NOT stand out by not having ID.

Robert
Submitted by Sandra on

Rachel said about the inclusion of no-ID travelers in the db that TSA keeps on "problem" people:

"That really disturbs me. I certainly hope it's not true."

Oh, but it is true, Rachel. Kippie admitted to it.

Still want to be part of this organization?

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