New TSA "Policy"

I am sure most of us have been reading or listening to the growing debate about the new TSA policy regarding the backscatter xray vs. manual frisking that is now required to board an airplane.  TSA is "aggressively installing" these scanners according to multiple sources and expects to have another 500 in place before the end of the year.

One passenger in CA has already made a HUGE public issue about the fact that if the xray is refused the option left is actually more equal to a sexual battery than a search for safety.  The description of the process is quite frightening in my opinion and I fail to see how groping the genitals of each passenger TWICE and searching between the buttocks on all flights originating in the USA is going to stop a terrorist on a flight from overseas.

How is it that TSA put this policy in place without going through any law making process?  Why is something like this in place that appears to violate the 4th Amendment, individual liberties, and subject US citizens to a violation of their rights?  What about the fine and prosecution they are threatening the CA man with because he "presented to the security check point" but would not give in to their demands and was denied boarding?  Does he not have the right to refuse and not fly without fear of prosecution and fines?

I realize that it is a personal choice to fly however not everyone has the luxury to take three weeks off to drive cross country and going overseas virtually demands flying.  Do we really have to give up all our rights in order to board a plane when TSA and Homeland Security have no data that shows these methods improve flight safety at all?

As with many legal and government matters, the press and internet blogosphere has been big on sensationalism and short on facts.

ClydesMom:

How is it that TSA put this policy in place without going through any law making process?

What makes you think that the law doesn't authorize the screening? 49 U.S.C. § 44901(a) provides:

"In General. - The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. In the case of flights and flight segments originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code), except as otherwise provided in section 44919 or 44920 and except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match programs."

The federal regulations at 49 C.F.R. § 1540.107 state: "(a) No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter."

Sterile area is defined in 49 C.F.R. § 1540.5 as "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."

The statute and regulations thus requires the screening and leaves it to TSA to determine the appropriate screening procedures to be conducted. Moreover, failure to consent to the screening results in mandatory refusal of the passenger to board the aircraft under 49 U.S.C. § 44902(a).

ClydesMom:

Why is something like this in place that appears to violate the 4th Amendment, individual liberties, and subject US citizens to a violation of their rights? 

And how, exactly, do you conclude that it violates the 4th Amendment (which is the only specific right you mentioned)? The 4th Amendment prohibits unreasonable searches and seizures, and generally requires a warrant supported by probable cause. But as you well know, consent to search eliminates the need for a warrant. The passenger has a choice: he or she can consent to the body scanner or consent to the pat down search OR CAN DECLINE AND NOT FLY. None of that violates the 4th Amendment.

What other liberties, exactly, do you are violated by this screening procedure? Your post is vague on that point, and I don't see any constitutional or statutory violations here.

ClydesMom:

What about the fine and prosecution they are threatening the CA man with because he "presented to the security check point" but would not give in to their demands and was denied boarding?  Does he not have the right to refuse and not fly without fear of prosecution and fines?

I don't know the incident to which you refer. My guess is that, as is often the case with these kinds of stories, there was more involved here than simply refusing the search. If he made a commotion or otherwise disturbed the screening process as a result of his being offended, that would draw fines. Of course the guy won't admit to doing that, he wants the government to look as bad as possible. But without a full airing of the facts, I can't comment on that.

ClydesMom:

The description of the process is quite frightening in my opinion and I fail to see how groping the genitals of each passenger TWICE and searching between the buttocks on all flights originating in the USA is going to stop a terrorist on a flight from overseas.

I guess I don't see it as nearly "frightening" as you do, even taking your description as accurate. I've not seen the process myself so won't comment on whether the descriptions you provide are accurate. And, of course, one can avoid that by going through the scanner.

You are correct that it won't stop a terrorist from overseas from getting on the plane. But that's a red herring—NO U.S. SCREENING would do that. If that was your criteria for what screening ought to be allowed, we'd have to chuck the entire screening system and just let anyone board here in the states. Of course the idea is to prevent terrorists boarding planes here in the U.S. Apparently, memories are a bit short. The 9/11 highjackers all boarded AT U.S. AIRPORTS. That is the kind of thing these rules are meant to prevent. I happen to think that's a worthy goal.

ClydesMom:

Do we really have to give up all our rights in order to board a plane when TSA and Homeland Security have no data that shows these methods improve flight safety at all?

Come on, now, this process is nowhere near giving up "ALL our rights" (emphasis added). You have a choice of two screening methods, either of which some folks may find embarrassing or uncomfortable. I understand that, though I don't personally share the discomfort, at least not of the scanner anyway. But the fact that it is embarrassing or uncomfortable does not equate to being illegal or a violation of any rights, let alone ALL our rights. As for safety, it has long been known that some criminals will hide illegal substances in intimate parts of the body betting on the idea that security will be unwilling to look there precisely because of that sensitivity. If criminals will do that with drugs and other contraband, why wouldn't terrorists do the same?

None of this is to say that you have to like it, and you can lobby your congress persons and TSA to change the process. I just think that the hyperbole and sensationalism that grows up on topics like this prevents a real understanding of what's going on and thoughtful discussion of what procedures should be used.

"I don't know the incident to which you refer. My guess is that, as is often the case with these kinds of stories, there was more involved here than simply refusing the search."

He video taped the encounter as he was expecting a conflict with TSA.  It is on YouTube, but mainstream media has been covering it too.  You can read one story covering it here: http://www.cbsnews.com/8301-504763_162-20022861-10391704.html

He declined the xray and when TSA explained the extensive pat down he made the statement if they touched his (genitals) then he would charge them with sexual battery.  That is when it went back and forth between him and TSA. Ultimately he was denied boarding and then TSA made the statement they would pursue prosecution and an $11,000 fine for "presenting to security and refusing screening."  

"The statute and regulations thus requires the screening and leaves it to TSA to determine the appropriate screening procedures to be conducted."

I have no problem with security screening.  It is the two methods they have now chosen.  Surely we have other options than an xray that gives a nude image of the passengers with questionable radiation exposure:

"In May, four scientists from the University of California San Francisco wrote to the White House Office of Science and Technology Policy expressing concerns that the scanners might expose the skin to high doses of X-rays that could increase the risk of cancer and other health problems, particularly among older travelers, pregnant women and people with weak immune systems, wrote the Los Angeles Times.

The IACRS includes the European Commission, International Atomic Energy Agency, Nuclear Energy Agency and the World Health Organization.

Governments were advised to consider "other techniques to achieve the same end without the use of ionizing radiation," Bloomberg reported.

The bad news, the report said, is we won't really know what exposing millions of people to the machines will do until we actually expose millions of people to the machines."

or a pat down that is so intrusive that no doctor would examine a patient without an observer and an attempt to preserve a patient's dignity under similar circumstances?  Locally one father was interviewed and his 12 year old daughter was traumatized when he declined the xray because of the radiation concern in a young child and they patted her down so intrusively in public that she was hysterical and crying.  Is there really that much of a concern with a 12 year old?  Where is the line drawn?  

Remember McCarthyism?  The Drug War?  When the govt and citizens become fearful, civil rights fly out the window, at least temporarily until cooler heads prevail...generally, when the fear passes.

What will be interesting is the first lawsuit filed against the TSA and the individual screener for sexual assualt...how will the courts weigh that issue?

"What will be interesting is the first lawsuit filed against the TSA and the individual screener for sexual assualt"

I think this is what John Tyner was trying to get at.  Not the lawsuit, but when he was "discussing" the screening with the TSA agent he made the statement that is was a sexual assault.  TSA countered that it was "consensual."  Tyner's response was that under any other circumstance it would be assault.  So why does the government have the right to be THAT intrusive?  If someone made a complaint to the police that an individual had groped their breasts, grabbed their genitals, and ran their hands in between their buttocks: TWICE and the other party stated it was "consensual" then thre would likely be a trial to determine if it was "consensual" or not. If the government tells you that you cannot fly unless you submit how is that consensual?  How is it different than the assailant who tell you they won't let you go unless you submit?

Basically they are telling citizens you either give up your right to privacy and not have your body invaded or your travel is restricted by "policy."

ClydesMom:

That is when it went back and forth between him and TSA. Ultimately he was denied boarding and then TSA made the statement they would pursue prosecution and an $11,000 fine for "presenting to security and refusing screening."  

Yeah, that "back and forth" is likely the problem, not the simple refusal to be searched. In any event, the TSA screeners don't decide what fines to pursue; there is a separate process for that.

ClydesMom:

I have no problem with security screening.  It is the two methods they have now chosen.  Surely we have other options than an xray that gives a nude image of the passengers with questionable radiation exposure...or a pat down that is so intrusive that no doctor would examine a patient without an observer and an attempt to preserve a patient's dignity under similar circumstances?

Two points here. First, the extent of the screening and what the public considers reasonable, and what risks we are willing to take are all worthy subjects for debate. If the scanners do pose a potential health risk then at the very least the agency ought to provide an alternative, which they do. The issue with the pat downs is how intrusive they ought to be, and there is a balancing that needs to be done between better security and the comfort/dignity of the traveling public. Again, not having experienced it first-hand or seen it, I cannot comment on how intrusive it really is. The point I'm making is that the screening itself does not appear to be illegal or a violation of anyone's rights, which was the initial assertion made. Whether it's the right policy is another matter, and fortunately in the U.S. we have the opportunity to debate this stuff and lobby for changes in things we don't like.

Second, I dispute your assertion that "no doctor" would conduct an examination of private areas of the body without an observer present. From my own personal experience of medical exams even more intrusive than the pat downs you describe, I know what you've stated is incorrect.

ClydesMom:

Is there really that much of a concern with a 12 year old?

You seem to assume that terrorists would not use children to help carry out terrorist attacks. A report by the UN released earlier this year notes that indeed terrorists have used children, both boys and girls, to carry out, or attempt to carry out, terrorist attacks. These include Al-Qaida attacks. See the UN report summary. While the report focus specifically on terrorism in Iraq since reporting on the issue was first started, it would be foolish to dismiss the possibility that kids could be used for attacks any other place in the world as well. If Al-Qaida would do it in Iraq, is there any reason to think they'd not try it here, too? Again, this is not to say that the specific screening methods to which you object should be used, but only to note that exempting kids from screening is an unwise security decision in light of the fact that we already know kids have been used for attacks.

ClydesMom:

If the government tells you that you cannot fly unless you submit how is that consensual?

Because you have a choice. That the choice has a consequence of not being able to take the flight does not make it any less consensual. Lots of decisions have consequences, we see that every day. Your employer asks you to do something, you can refuse to do it. But the employer can fire you for that. There is a consequence for your refusal, and there is no violation of your rights or anything illegal about it. A male goes to a doctor to complain a pain in his lower abdomen, and the doctor wants to conduct an exam which will involve touching around the area of the genitals as part of a hernia diagnosis. The patient can refuse the exam, but then the doctor can refuse to provide any service to the patient. Again, there is a consequence for the refusal, but that doesn't make the consent for the exam any less voluntary. You are confusing the fact that you don't like the alternative of not flying with the consent being coerced. Nothing says that the alternative must be one that you like for the consent to be voluntary.

ClydesMom:

How is it different than the assailant who tell you they won't let you go unless you submit?

The difference is that the alternative offered, that of being physically harmed, is an ILLEGAL one. The alternative of not flying is not an illegal one.  This is the same kind of distinction that underlies what constitutes duress and extortion: the means used to extract the consent or action from the other person involves some use or threat of use of some illegal action.

ClydesMom:

Basically they are telling citizens you either give up your right to privacy and not have your body invaded or your travel is restricted by "policy."

Stated a tad overdramatically, imo, but essentially correct. But that's not illegal. It is an issue worthy of debate: what kind of security policy do we as a nation wish to pursue—how much are we willing to give up to get that extra measure of security? Express your thoughts to your Congressional rep and write the TSA expressing your desire for a less obtrusive search method.

It is interesting, I think, that it is a Democratic administration that has adopted this policy. Those who thought that the Bush Administration went too far in trampling on the rights of Americans were sure Obama would reverse that trend. Not only did Obama retain most of the Bush era security policies, he's actually taken some further than the Bush Administration ever did, like this new screening procedure. Once folks get into office and start seeing the classified security briefing reports that the intelligence and law enforcement agencies provide, their outlook changes. They then see all the things we don't see. Attorney General Eric Holder alluded to that in an ABC News interview:

"In some ways it's the most sobering part of the day," Holder said of his morning intelligence briefing, in which he gets the latest report on the landscape of "the organizations, the people who are bound and determined to do harm to our nation."

The article goes on to say:

He noted, however, that the Bush administration "left us an infrastructure that I think is very good," and that national security officials are constantly striving to put the country in a safer position.

That's from an Adminstration that can hardly be described as conservative and was heavily critical of the Bush Administration before Obama took over the White House. It's a whole different ball game once you are in charge. It's a reflection of dealing with what they see every day in their work that leads to these kinds of measures. There is no plot to deprive Americans of of rights or to degrade or humilitate them. But they see one side of it that scares them and they react to that. It's up the public to push back by lobbying their congress persons and agency officials when they think the government is going too far and demand that the government do something different to balance the competing concerns.

I travel frequently for work and a couple of weeks ago I was in line for screening.  As I got closer to the front of the line I saw that the TSA agents were randomly directing some passengers to the traditional x-ray machines, and directing others to the full body scanners.

Yep, when it was my turn they directed me to the full body scanner.  I politely told the TSA agent "I'd rather not" and immediately the TSA agent hollars to all creation "WE HAVE A REFUSAL"...so of course every person in the screening area turns to look at me.  Then I'm directed to stand over in an area and wait.  And so I wait for about 5 minutes.  Then a TSA agent goes through ALL my carry on stuff...every last bit...wiping it down with wipes, opening containers, doing everything short of dumping my purse and briefcase out.  Then comes the frisking.

The entire process from the time I declined the full body scanner till I was cleared to board my flight was close to a half hour.  It's my belief they are making it painful to decline in order to discourage people to decline.  They've spent a boatload of money on those scanners, they want to use them.  For myself, I try to be careful not to get on the line that feeds to the full body scanners, but if it happens to me again I will again decline.  There hasn't been enough testing on the levels of radiation you are exposed to, and I don't fully trust that the images are destroyed.

My advice if you choose to decline is to make sure you have plenty of time before your flight.

I've undergone a pat down search at least a half dozen times when I was confined to a wheelchair. Yes, it is extensive, put it was done very professionally and was neither embarassing or uncomfortable.

So when someone challenges the search as a sexual assault, there will be two avenues: criminal charges and civil suits. I would have to guess that there won't be a lot of DAs standing in line to bring criminal cases, as the majority of states have elements of intent in their statutes that would be almost impossible to sell to a jury (similar to how many statutes spell out exceptions to things like "bona fide medical procedures"). I suspect we'd also start to see legislation changing the statutes to expand to "bona fide security screenings".

On the civil suit side, it'll be interesting to see what damages can be proven. Discomfort, humiliation, or embarassment are difficult to put a dollar figure on, and of course the defense will assert that there shouldn't have been the element of "surprise", that the procedure is uniform across the country, and of course that this was the choice made by the plaintiff. That the choice was between two similar evils will be fodder for much discussion, but again elements of INTENT will also factor in, as will factors such as the surroundings (how public or private was the area where the search took place). I suspect that most potential plaintiffs won't be SO "harmed" by the search as to take the necessary steps to DOCUMENT that harm, such as seeking counseling, getting a diagnosis, etc.  The key being that a successful civil suit will hinge of DAMAGES and not outrage or anger alone.

"I politely told the TSA agent "I'd rather not" and immediately the TSA agent hollars to all creation "WE HAVE A REFUSAL"...so of course every person in the screening area turns to look at me."

Therein lies one of my first problems.  According to all the quotes from TSA they are supposed to handle a refusal to scan professionally and quietly without embarrassing the passenger.  We all know that a good number of them THRIVE on the inflated sense of power and personally I have NEVER encountered a pleasant TSA agent no matter how nice I was to them.

"For myself, I try to be careful not to get on the line that feeds to the full body scanners, but if it happens to me again I will again decline."

Unfortunately for those of us who live here in GA (as I see you do) I feel that ultimately they will be at every line and there will be no other option.  Hartsfield is being quite aggressive in installing them.  

"There hasn't been enough testing on the levels of radiation you are exposed to, and I don't fully trust that the images are destroyed."

This is the OTHER problem.  I predict it won't be long before there is a lawsuit because some TSA agents being "funny" shared some passenger's scan image and it goes public.  They have done too little planning and WAY too much executing of this screening plan. 

I have made the decision until they come up with a plan that doesn't involve an unproven level of radiation and nudity vs a sexual battery I will not be flying anywhere.  I have already been sexually assaulted once in my life I don't think I should have to relive it in order to go on vacation.  

"The statute and regulations thus requires the screening and leaves it to TSA to determine the appropriate screening procedures to be conducted."

There in lies the problem:  TSA isn't known for being run by intelligence and what information did they use that these were the only two acceptable methods and that they would increase flight safety without causing harm?  All the head of the agency keeps saying is "we all need to do our part."  

"Your employer asks you to do something, you can refuse to do it. But the employer can fire you for that. There is a consequence for your refusal, and there is no violation of your rights or anything illegal about it."

Yes, but I can also find another job that doesn't require that action that is objectionable and if I am the patient I can choose another physician who doesn't think the exam is necessary.  As a flight passenger I have NO alternative if flying is the only way to get to my destination and I am not comfortable with their options for searching me.  What other flight options are there?

"It is an issue worthy of debate: what kind of security policy do we as a nation wish to pursue—how much are we willing to give up to get that extra measure of security?"

Where is the data that says this is going to be safer?  NO ONE from any official source has presented ANY information that this is proven to improve flight security.

Yep...it was at hartsfield that I had this experience.  It used to be that only the screeners on the far left and the far right used fullbody scanners and the ones in the middle lanes were traditional xray type...but you're right, they're installing more and more every day. 

The initial TSA agent that advertised my refusal was not discreet or professional....she instructed me to go stand over on the side, and then they left me there for about 5 minutes...giving every passenger behind me time to check out the potential terrorist who refused to go through the full body scanner.  A 2nd agent came over to do the "pat down" and I joked with her about was she releasing me from "time out" because that's exactly what it felt like....like I had been placed in time out. 

Pat down is not the right expression for the physical groping I experienced.

I will refuse again...I just don't trust these machines nor the people running them.  I wish I had the luxury of just opting out of travel all together, but I don't....will be heading to hartsfield tomorrow am for more travel....this time to NYC.....I'm praying for no bedbugs :-)

"The initial TSA agent that advertised my refusal was not discreet or professional....she instructed me to go stand over on the side, and then they left me there for about 5 minutes."

THIS is the problem.  You have these "agents" that have almost NEVER acted professional before and now they have given them MORE discretionary power without necessity.  Here is a quote from the TSA agent when Tyner asserted his rights:

"When he tried to assert his rights, Tyner was told by a TSA supervisor on tape, “By buying your ticket you gave up a lot of rights.”  (emphasis mine)

How frightening is that, that in this day and time if you want to travel you have to give up your rights and the drones on the passenger level seem to enjoy it?

TSA isn't controlling their agents now and then they hand them carte blanche to basically do what they want with passengers while threatening them with prosecution and civil fines for not complying.  

"I will refuse again...I just don't trust these machines nor the people running them.  I wish I had the luxury of just opting out of travel all together, but I don't.."

Fortunately I do have that luxury.  I will be driving 8 hours one way for Thanksgiving and 7 hours each way for Christmas and I cancelled the trip to Dallas since it is too far to drive.  

Best of luck I am not sure which is scarier the bedbugs or TSA!