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?
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!).
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.
The TSA’s ability to predict which travelers are terrorists and which are not is apparently so good that not only can they identify which people are possibly terrorists, but they can also predict whether those people are in a “terrorist mood” before a particular flight, or are feeling rather non-mass murder-y that day. Much like rhythm-method birth control, being able to pick out “safe days” vs. “unsafe days” allows minimal inconvenience for all parties.
For example, on January 23rd, I was definitely not in touch with my inner jihadi, and so the TSA assigned me Pre-Check status…
This morning when I woke up, I didn’t even realize that I was feeling like causing some trouble. But luckily, the TSA did, and so they assigned me “selectee” status to dissuade me from bringing any bombs on board…
If you’re not familiar, the infamous “SSSS” stands for Secondary Security Screening Selection, and is applied to travelers that are on the “Selectee List” (kinda like the “No Fly” list, except they let you fly after petting your genitals before every flight), travelers who trigger an algorithm by doing such things as buying a one-way flight in cash on the day of departure (because Al Qaida can’t afford a round-trip ticket), or at random. It’s unclear why SSSS was assigned to me today or what effect this has for a boarding pass issued at an international airport, as Stockholm didn’t seem keen to treat me any differently, but I for one can’t wait to see what harassment I get when I land in New York.
Obviously I’m being facetious in suggesting that the TSA has the technology to determine which days a dangerous individual might decide to do something bad (and, for the dense within DHS, any suggestion that on some days I might be a terrorist or consider carrying bombs on a plane is also sarcasm). If on some days we’re saying people are trusted enough that they don’t have to take off their shoes, don’t have to take electronics out for separate x-raying, don’t have to go through a body scanner, and are screened using a metal detector calibrated to be less sensitive than usual, but on other days require the most vigorous of security screening, is the system not completely broken?
As far as keeping us secure, it is certainly broken. But is the Pre-Check system really designed to keep us secure, or is it simply to funnel rich people — that is, people with the most influence over the political process — through easier security such that they may continue treating the 99% like cattle without political repercussions?
The latest invention for controlling a population in transit: meet the TSA-approved “exit portal,” or, as some call it, the “detention pod.” These little devices are installed at the exits to the secure area of the terminal and use an airlock-like system where you enter the first door, the first door closes, and then the second door opens. Syracuse Airport is the first to give them a try
The airport claims that this is so the exits can’t be used as an entrance, thus saving them the $11/hour that they used to pay to have a security guard make sure no one goes the wrong way. It’s unclear how much the portals cost and how many thousands of hours of a security guard’s salary it cost to buy them. It’s also unclear why they would use these machines instead of a pretty ordinary one-way turnstile or, as some airports already use, entirely unobtrusive sensors that detect when someone is walking in the wrong direction and sound an alarm.
What *is* clear is that these devices represent another opportunity for the TSA to violate the public. Perhaps the TSA sees you walking through the terminal and determines that you’re suspicious or. you know, your credit score wasn’t good enough. They can then lock you inside these machines for “additional screening.” What happens if there is a fire, or another terminal shooting, and people need to exit immediately? Surely there’s an “emergency mode” where the portals simply open, but does it work if the portal controller is on fire?
The TSA comes up with an impressive quantity of bad ideas. Be sure to let Syracuse Airport know that you don’t appreciate their support of this one.
I have a friend who lives near Penn Station in midtown Manhattan who tells me that she sees the TSA there all the time, but never remembers to take a picture for me. Today, I had the “luck” of seeing it myself…
So, the next time someone says, “I don’t mind surrendering my rights in an airport; anything to keep us safer,” please remind them that the TSA has been plotting for years to invade every mode of transportation. They practice at Penn all the time because the NYPD is happy to join in their totalitarian distopia manufacture. They hit Amtrak stations, Greyhound terminals, music festivals, and political events. For now it’s a bag search. How long until the scanners and pat-downs are a “normal” part of walking down the street?
I mean, they didn’t say that explicitly, but you be the judge: the Office for Civil Rights and Civil Liberties of the U.S. Department of Homeland Security was asked to review the policy of DHS’s Customs and Border Patrol regarding conducting suspicionless searches of electronic media (generally, your laptop) at border crossings. This policy means that any time you enter the country, the government feels it has the right to look through all the documents on your hard drive, even if there’s no reason at all to suspect that you might be engaged in criminal activity.
The review concluded that “imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefit.”
Do you see a problem here with an office, whose job it is to ensure that an agency respects the civil rights of the people, that does not understand how requiring the government to have a reason before it paws through the photos of your kids and wife (yeah, those photos!), reads through all of your e-mail, and makes sure the music you’re listening to and books you’re reading are not “suspicious,” would have a civil liberties benefit? DHS does this, ostensibly, to prevent the trafficking of child pornography and corporate espionage. I’m no expert on either subject, but it would seem to me that if one were to engage in either crime, wouldn’t they simply upload their contraband to a secure location on the Internet, where they can easily download it at their destination, rather than travel the globe with it sitting on their hard drive?
It seems clear to me that the alleged desired benefit of these searches is unobtainable since they are easier to circumvent than the TSA’s body scanners. It seems clear to me that this is a new technique to spy on the citizens, collect data (“Oh, Mr. Corbett here has files on his hard drive relating to aviation security… let’s put him in a database!”), and chip away at the Fourth Amendment. It seems clear to me that this furthers the government’s, and particularly the Obama administration’s, desire to fellate the copyright industry — from its absurd extrajudicial prosecution of Megaupload, to its attempts to pass SOPA and related laws, to these hard drive searches at borders that have already seen travelers questioned about whether they illegally downloaded songs and movies.
While this battle is fought on the legal front, you can protect your data now: free software such as TrueCrypt can scramble the data on your computer such that, if done right, it cannot be unscrambled without the correct password, even by the government (and, even if the government can decrypt your hard drive, they won’t: to admit that they know how to break the world’s strongest encryption algorithm would be giving away a secret that is worth much more than prosecuting you). As U.S. Courts of Appeals have refused to compel people to provide passwords, for the time being, encryption allows you to force the government to respect your rights.