You may have noticed this blog was conspicuously quiet on the matter, and that’s because of both conflicting reports as to the scope of the updated groping and because of some inside knowledge on what the TSA is up to. But, having gone through the TSA’s pat-down today and LGA, here’s the deal:
First, if you’re getting a pat-down because you alarmed the body scanner, it’s going to be a full-body pat-down despite the fact that the scanners were specifically designed to point out the specific area of the body upon which an item was detected. From what I could see at the checkpoint, this is a much briefer version of the opt-out pat-down, but still touched every area of the body.
Second, if you’re getting a pat-down for a reason other than alarming the body scanner (e.g., you opted out), the only difference I noticed was that the “groin search” used to involve several vertical back-of-the-hand swipes from your bellybutton to your crotch, it now is 3 horizontal swipes (from hip to hip) followed by 3 vertical swipes. It’s slightly more invasive, but given that the TSA was all up in your crotch before, it’s not that big of a change.
In conclusion, the only place you’re likely to notice a change is if you alarm the body scanner. Given that about half of people were getting patted down by this supposedly brilliant technology while I was watching today (and, of course, the pat-downs finding nothing), that may be significant if you weren’t already opting out.
Given that chances are you may get a pat-down anyway, may as well opt-out, eh?
“TSA is updating the AIT PIA to reflect a change to the operating protocol regarding the ability of individuals to opt opt-out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers. … The individual will undergo physical screening if ATR alarms for the presence of an object.”
For those not into TSA jargon, AIT = body scanner, ATR = the software on the body scanner that allegedly detects stuff on your body, and “physical screening” = pat-down.
But, new documents I obtained in my lawsuit against these policies (source, pp. 27, 28) show that they lied about a key fact: if you are selected as one of these “some passengers,” you will be screened with both body scanner and pat-down, even if the body scanner does not alarm:
“That does not preclude TSA from determining that security considerations may sometimes justify exceeding the baseline established by the pat-down technique by requiring certain passengers to undergo both AIT screening and a pat-down—two screening methods that provide distinct benefits when used in tandem. … These [redacted] empirical findings supply ample justification for TSA’s decision to require selectees to be screened using both AIT scanners and a pat-down, without the ability to opt for a pat-down alone.”
Further, the pat-down you’ll receive in this scenario has been modified, although the TSA has redacted from the document exactly how (my best guess, based on my research of all documents and the TSA’s past treatment of passengers selected for additional screening, is that your “sensitive areas” will be touched with the screener’s front-of-hand, rather than back-of-hand).
So, who are these “some passengers” that the TSA is subjecting to both a scan and a proper groping? As discussed in my previous post on this lawsuit: anyone can be randomly selected for this treatment. If you’re on the TSA’s “we think you might be a terrorist” list, you’ll be a “selectee” every time you fly. But, if you buy a one-way ticket with cash, or something else the TSA finds to be “suspicious,” or even if you don’t and you just get unlucky, you can now expect blue gloves between your legs.
It is highly troubling that the TSA is demanding invasive double-searches without disclosing their intentions to the public. And what does this say about the nearly $2B body scanner program, if the TSA feels the need to pat people down after using them? Clearly it shows that the TSA knows the body scanners can easily be beaten, so why have them at all?
The reason, of course, is [REDACTED] — the best way to avoid being accountable to the people.
As you probably heard, a man today pulled out a gun in the non-secure area, near baggage claim, of Ft. Lauderdale/Hollywood Int’l Airport (FLL) and shot and killed at least 5 people, wounding several more.
The man was identified by the media as a 26 year old active U.S. Army soldier with no immediately apparent motive. And I sit here shaking my head, because this brings up not 1 but 3 recurring themes in our society that we simply refuse to address:
Mental healthcare is lacking, especially for our military. I’ve watched enough of my fairly well-functioning (i.e., hold down jobs) friends let anxiety, depression, or other mental health conditions go untreated or under-treated because treatment is simply too expensive. But for those without resources — such as the homeless, or those that come back from war injured or deeply traumatized — the rates of untreated mental illness are astounding. A report from a year and a half ago noted that going to the VA to seek mental health treatment can result in waits up to 279 days, and yesterday the L.A. Times reported that there are 1,200 veterans in that city who don’t even have a roof over their head. The cost to our society of letting mental illness go treated far exceeds what we would spend on treating it, and when we refuse to provide it to people who go to war for us, we are flatly failing our duty to those people. I am certain the 13 people with bullet wounds in Broward County today would agree.
Gun-free zones don’t work. As a Florida weapons license holder, I’m aware that Fla. Stat. 790.06(12)(a)(14) prohibits me from walking into the baggage claim area of an airport with a firearm, essentially making all airport structures “gun-free zones.” I remember thinking how stupid this was while picking up a friend at FLL airport a couple years ago, because any law-abiding citizen before the security checkpoint is now a target for criminals who know they don’t have guns. I can’t imagine how infuriating it would be to have left your weapon in your car, out of a desire to comply with the law, while helping mom with her suitcase, only to become the next victim.
Pre-checkpoint airport attacks are in vogue, and the TSA makes it worse. Over the last decade, there have been several incidents of violence committed by individuals in airports prior to security screening. Domodedovo airport bombing (2011), LAX airport shooting (2013), Ataturk airport bombing/shooting (2016), etc. etc. etc. The TSA, by creating lengthy checkpoint lines that over the last year have often exceeded 1 hour, has created a target that, again, criminals know is unarmed and unable to fight back. What is the point of putting your blue-gloved hands all over our bodies to ensure that we don’t hurt people on an airplane when any terrorist could just blow/shoot up the checkpoint instead? To make sure that airplanes aren’t used as missiles 9/11-style? Because we fixed that problem with re-enforced cockpit doors and changing our mindset from “comply with hijackers so they’ll let you go” to “fight them to the death in the sky, even if it means risking the plane.” Airport screening should be quick and expedient, looking for the most dangerous items and ignoring your Swiss Army knife, bottle of water, and 10 oz. shampoo bottle, such that there is never a line of more than a few people. This can be accomplished by adjusting policies, throwing out the scanners (or selling them to fascist regimes where they belong), and putting bomb-sniffing dogs at the checkpoints.
This shooting makes me angry, because it is a perfect demonstration of what we, as a society, are screwing up and refuse to fix.
A year later, we finally have the government’s position on the matter. First, I’m reminded that I’m complaining for no reason:
“AIT screening presents no greater intrusion upon passenger privacy than the walk-through metal detectors previously deployed at airport checkpoints”
…which is why 94% oppose them.
Next, I’m told that I shouldn’t concern myself with the matter, because only “selectees” will lose their right to opt-out:
“[T]he challenged AIT screening policy applies only to individuals who have been issued a boarding pass with an “SSSS” notation indicating that they have been selected for enhanced screening. This notation generally means that the passenger in question is a ‘selectee.’ Selectees are individuals who are ‘[k]nown or suspected [t]errorists’ or who have been ‘identified as [posing a] higher risk’ to airline security ‘based on intelligence [redacted].’ Additionally, as of July 2016, TSA has instituted a policy under which [redacted] airline passengers are randomly designated as selectees for the purpose of a particular trip.”
…but that last sentence is, of course, the problem and, frankly, is what we all already know: that you can be Mother Theresa and still end up with a blue glove between your legs because because the TSA has randomly made you a “selectee.”
But, let’s ignore that for a moment. There’s a more pressing question: Why does the TSA feel that someone with a higher “risk” level (whether because they are a suspected terrorist, or were randomly selected to be treated like one) should be screened by body scanner rather than a pat-down?
“[Redacted]. Covert tests also suggested selectees could [redacted] opting out of AIT screening in favor of a pat-down.”
Ah, that clears it up. The TSA, allegedly, found some scenario where it’s easier to beat the pat-down than the body scanners, but doesn’t want to tell us what that is. But, what about the very real scenarios where the body scanners are easier to beat than the pat-down? That, of course, isn’t discussed at all. Once again, the TSA blindly chooses these high-tech, high-price, highly-invasive gadgets when very effective alternatives exist.
The case continues as I get an opportunity to file a reply brief. I’ll also be asking the court to appoint counsel with a security clearance to review the redacted brief and represent my interests, because hiding the rationale for a policy that is being challenged for arbitrariness from the person challenging it doesn’t exactly lend itself to a fair day in court.
Since the nude body scanners were introduced by the TSA as primary screening in Fall 2010, they have always maintained that use of the technology is optional: that if you wanted, they would instead simply molest you using their new “pat-down” rather than use radiation to image your nude body. Not exactly a pretty choice, but it was some choice nevertheless.
It’s amazing how long these things take to progress. It’s 7 months into the lawsuit and I just filed my principal argument, the appellant’s brief — a written statement of the entire case. Those 7 months were filled largely with the TSA bickering about how much information they had to release to me, which resulted in the end with several thousand pages landing on my doorstep. I’ll be posting those pages, known as the “administrative record,” shortly (scanning thousands of pages is an effort!), along with a few highlights (including, “How Any Terrorist Can Get Pre-Check,” an exposé on why the Pre-Check system is bullshit), but what was most interesting about them is they showed zero basis for their decision to eliminate the opt-out. As I explain in my brief:
The Administrative Record is illuminative on the reasons for adopting the body scanner and pat-down program as primary screening in 2010 [Ed – Not that they were good reasons, but they were reasons.]. There are many documents that address the effectiveness of the body scanners and provide some evidence of cost/benefit thought process and procedures by which the program is tested. See, e.g., Admin. Rec., Vol. 4, p. 3893 (results of body scanner field testing). However, the elephant in the room is that there is no discussion on the effectiveness of the pat-down component of the program, nor a comparison between how likely a body scanner is to find a dangerous item on a passenger as compared to a pat-down.
In the history of my advocacy, I’ve been kicked out of airportsthreetimes (for refusing to allow the TSA to “touch my junk”). I’ve had airport police called at least a couple times. But having the feds come down the jetway just for me? That was a new experience I had last Wednesday at Los Angeles International Airport.
I went through the security line as usual, opting out of the nude body scanners, but one of my bags was flagged for extra screening. Upon opening it, they were shocked to find… TSA documents, bound into several books, labeled “Sensitive Security Information” (“SSI”). “These are our documents,” a sassy Supervisory Transportation Security Officer exclaimed at me before fetching the highest-ranking traveler molester TSA staff member at the checkpoint, a suited Transportation Security Manager (“TSM”) who wanted to know how I got those documents and why I had them.
As you guys probably guessed, I have them because the government sent them to me during litigation, and I was traveling with them because I have a brief due based on those documents in Corbett v. Transportation Security Administration, 15-15717 (“Can the TSA make the body scanners mandatory?”) next week. They contained mundane details of how the TSA came to the decision to implement the body scanners and then to make them mandatory under certain circumstances, rather than any kind of epic secrets ISIS would moisten themselves over. But I’ll be damned if I have to explain my reading material to the TSA, so I told them they were documents lawfully in my possession and I didn’t feel compelled to share anything further.
The bag check and the pat-down were soon completed, finding nothing other than my “concerning” documents, but I was instructed to “wait” and not to touch my bags, as airport police were on their way because they needed “someone else to make the decision.” “How are airport police supposed to determine whether it’s a problem if I have ‘your’ documents,” I asked Mr. TSM. He shrugged, and then airport police arrived and asked him exactly the same question, then wandered over to the side to let the TSA handle it. Kudos to Airport Police for not buying into their bullshit as they sometimes do in other airports.
Unsatisfied, the TSM calls the Federal Security Director’s office. The FSD is basically a “regional director,” typically overseeing several airports in a geographic area. The FSD’s office sent an assistant to come to the checkpoint while they found someone who could actually clear me. The assistant was friendly enough, and we spoke a little. After about 45 minutes had passed and it was approaching final call for my flight, I said to her, “It’s really a shame that the TSA is going to detain me for this long and cause me to miss my flight over the contents of paper when they’ve already determined that I have no hazardous items,” to which she replied, “Oh, you’re not being detained. We don’t detain people!”
Well that’s funny, since I was told to “wait” and not to touch my bags. The current standard for whether or not one is being detained was first contemplated in Terry v. Ohio, 392 U.S. 1 (1968) as “whether a reasonable person would feel like they were not free to leave.” I must disagree with the assistant, as it seemed clear to me that I was not free to leave until someone other than the TSM (such as the assistant) made the call, but I packed my bags, walked to my gate, and boarded my plane.
Of course, the story does not end there. After boarding, putting my stuff in the overhead, and taking my seat, an airline employee comes on board and says, “Mr. Corbett, the TSA would like to speak with you off the plane, can you show me where your bags are?” Ugh. I do so, and meeting me on the jetway was a smiley man (along with the original TSM) who showed me his ID: “TSA Inspector.” TSA Inspectors are the only TSA employees that are law enforcement officers. His position is, essentially, equivalent to an FBI Special Agent, although I’m sure far less trained given the lower pay grade associated with the job. He seemed to understand that the documents were for litigation and pressed me for a few minutes to explain my business, which I politely declined. After copying down the information from my ID, he miraculously allowed me to return to the plane, to face the looks of the flight attendants (who, to their credit, largely seemed understanding that the TSA is absurd) and passengers.
So there you have it… how you can be harassed and treated like a terrorist for possessing “suspicious” paper. The best part? The documents I had didn’t actually contain any SSI — they were redacted copies for public distribution. I’m tempted to print books with an SSI cover sheet and the U.S. Constitution underneath it. Or, maybe just 100 copies of the 4th Amendment underneath the cover sheet, and I can tear one out and give it to them each time they think it’s acceptable to detain people without probable cause (let me know if you’d like one to travel with, perhaps I’ll print a few dozen and mail them out if there’s interest!).
Last month, the 11th Circuit Court of Appeals abruptly terminated my case against the TSA’s international security interview program, wherein the TSA forces US-flagged airlines to interview their passengers before they return to the U.S. Their reason? I asked for an injunction (forcing them to stop or modify the program), and the court ruled that I can’t prove that I will be subject to it again, and therefore I lack standing. The rationale for this interpretation of standing comes from a case over 30 years ago where the U.S. Supreme Court that ruled that a black man who was choked out by the L.A.P.D., nearly to death, during a traffic stop still could not seek an injunction against the chokehold policy, despite proving that the L.A.P.D. had a widespread practice of chokeholds, that they were regularly deadly, and and that he was a victim of the policy. Los Angeles v. Lyons, 461 U.S. 95 (1983).
Lyons was a bad ruling, and I’m not certain the court would make the same decision today given its trend against rubber stamping blatant racial discrimination, but importantly, it ruled that while Mr. Lyons could not sue for an injunction, he could indeed sue for money, so I’ll get to renew my case as a request for money damages. If I win even a trivial amount, the TSA would have to stop the program, because then thousands of passengers daily could sue for that trivial amount. Even $100 would do, given that about 2 million passengers would be able to sue every moth by my calculations. So, I shall proceed in that direction.
With that said, I received an e-mail from a woman this weekend who said she was questioned at a gate for a domestic flight:
In Tulsa yesterday, three [uniformed TSA screeners] fanned out among people waiting AT THE GATES and began interrogations. They asked EVERYONE up and down my concourse, “Are these your bags? (Yes) Do you have any others? (No) Did you check any? (No) Where are you going? (Charlotte) After Chicago, where are you going? (I’m not going to Chicago, I’m going to Charlotte.) Okay after Charlotte, where are you going? (Portland) Portland Oregon or Portland Maine? (Y’all are scaring me. Is something going on here? What’s up?) We have to talk to everybody. Portland Oregon or Portland Maine? (Maine)
[It was American Airlines, the gates near A5, Saturday, August 6, waiting for a 1:40 pm flight to Portland Maine, after a flight to Chicago had taken off from the same gate.]
This is likely an extension of the SPOT program, the largely discredited waste of taxpayer dollars by which the TSA thinks its poorly-trained screeners can pick out terrorists just by looking at and talking with them. Please remember that you have no obligation to answer their questions, and although there may be additional screening, they cannot deny you boarding for remaining silent.
If you’re a non-U.S. citizen entering the U.S. with a passport issued by one of our friends in Europe, you can enter “without a visa” by completing an “Electronic System for Travel Authorization” form online and paying a fee (which, if you think about it, is really no different from getting a visa… it’s just you print a piece of paper instead of get a mark in your passport).
The questions on the application are mostly the typical stuff you’d expect we might ask those entering our country, but DHS now proposes to add one more:
“Please enter information associated with your online presence—Provider/Platform—Social media identifier.”
What’s wrong with that? Well, I’ve explained in a letter opposing the proposed rule that there are many problems with this. The first is that it’s not even clear what one would need to disclose, and sometimes disclosure may be a troubling basis for discrimination:
Do I need to think back to the MySpace account that I created in 2003 and have not used since 2006? If I have a username for a chat room or message board, does that count? What about Tinder? Or perhaps I use the popular dating app for gay men known as Grindr. Do you think it’s reasonable that I would then need to indirectly disclose my sexual preference as a condition of entering this country? Or perhaps I use the Web site for connecting individuals with sexual fetishes known as FetLife. Will you then review my FetLife account and determine if my preferred variety of kinky sex is acceptable? If it is uncovered that I enjoy being dominated by women in latex bodysuits while ball gagged, will a CBP officer consider me the same level of security risk as one who prefers long walks on the beach and seeks a partner who loves Jesus? Speaking of Jesus, many people use social networking related to their religion (Christian Mingle, JDate, etc.). Now you’d like to know my religion, too?
Not particularly worried since you’re a U.S. citizen and therefore won’t have to personally deal with this problem? Think again…
When the U.S. government implements a stupid rule affecting foreign visitors, other countries implement retaliatory rules on U.S. citizens seeking to enter their territory. … Many other countries require visa fees only from U.S. citizens (or higher visa fees only for U.S. citizens), or fingerprinting only for U.S. citizens, in retaliation for what we do to their citizens. I don’t want to have to share my Facebook details in order to travel, and if you implement this rule, it is all but certain that I shall have to do so as other countries decide to implement retaliatory rules.
It would be nice if DHS, for once, could do something that would actually improve our safety rather than play around with technology that they know nothing about.
After finally reaching the front of the queue, I spotted, for the first time, the TSA’s new experiment with bomb-sniffing dogs. Interested in finally seeing the TSA put a far better solution in place for the detection of non-metallic explosives than the body scanners, I snapped a few pictures, including the one here.
But, of course, the TSA can’t leave well enough alone. “You can’t take pictures!” barks the dog’s handler. I can’t? Well that’s news to me, and I consider myself pretty up-to-date on aviation security law. 🙂 I soon spot an STSO (supervisory transportation security officer — the “3 stripe” blue uniform people) and ask her to clarify, but she tells me she doesn’t have time to talk to me. Eventually, I spot her boss, the TSM (transportation security manager — always wearing a suit), a very friendly South Asian woman who is cheerfully tells me that my First Amendment right to photograph has been suspended:
Jon: Are you the TSM by chance?
Jon: I have a question for you.
Jon: What’s the policy on taking pictures in line? The person with the K-9 told me I was not allowed to take pictures.
TSM: Yes, that’s a screening process, what he’s doing there, so you’re not allowed to take pictures.
Jon: OK, so that’s a federal regulation?
Jon: Not New York state, that’s a TSA…
TSM: No, not New York state, it’s federal.
Jon: Ok, so if I ask the TSA, because I’m a civil rights advocate, and my job is to sue the TSA, if I ask them, they’re going to tell me that I’m not allowed to take the pictures, and that’s official TSA policy?
TSM: You have to specify what you were doing.
Jon: Taking a picture of a K-9.
TSM: You can’t.
TSM: Because that’s a screening process.
Where legal, I generally record my interactions with the TSA, and New York being a 1-party consent state (any party to a conversation may record it), I got an audio recording (.mp3). (As a side note, a reasonable argument can be made, and some courts have held, that audio or video recording of government officials while working in public is constitutionally protected even in 2-party consent states.)
Why is this a “big deal,” some may ask: Any time the government restricts our ability to take pictures, they are reducing their accountability to the people. Thousands of times per day, law enforcement in this country violates the rights of citizens, but only occasionally is it caught on camera, and only then is it punished (sometimes). By removing our ability to document their actions, they are insulating themselves from consequences for wrongdoing, and this a free society cannot stand.
I’ve asked the TSA’s Civil Rights Office to comment as to whether this is official TSA policy and await a reply, but expect a new lawsuit to be filed soon either way.