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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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checkpoint

How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you.  I’m telling you what we’re supposed to do.  I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers.  [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong.  Ok?  Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas.  Others are perfectly clear.  Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear.  From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted).  The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me.  Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated.  It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime,  at the least we can get a laugh out of the end of the video.  The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”

 

What Are My Rights At The TSA Checkpoint?

tsacheckpointGoing through airport security manned by the TSA is an unpleasant at best, panic-inducing at worst experience, and it definitely helps to know what to expect and what you can do to ensure that you are harassed as little as possible.  The TSA is absolutely horrible at informing travelers as to the procedures they will face (often times declaring that they are “sensitive security information” and therefore cannot be published) and those working the checkpoints often misrepresent the rights and responsibilities of travelers (sometimes to be intentionally difficult, but generally because they were poorly trained).

So, here’s what every traveler should know before they collect their boarding pass at a U.S. airport:

  1. You have the right to opt-out of the body scanners and request a pat-down.  Unless your boarding pass indicates that you are subject to heightened security, which will be denoted by four S’s in big bold letters, you may simply tell the person running the body scanner that you “opt out.”  Try to keep a close eye on your belongings while they find someone to pat you down.
  2. You have the right to take pictures, video, and audio recording.  It can be comforting to many to know that they may document their interaction, especially if it looks like there’s going to be a problem.  You can take pictures, video, and audio recordings of the entire screening process with the following two exceptions: a) you can’t take pictures or videos of the x-ray monitors, and b) you can’t hold your belongings (including a camera) while you’re walking through the body scanner or metal detector, or while receiving a pat-down, but you can have a travel companion who has already been cleared do so on your behalf.  If the TSA ever denies you the ability to record your interaction other than for those two exceptions, please contact me.
  3. You have the right to request the TSA’s video of your experience!  Video from security cameras is almost always a public record covered by the federal Freedom of Information Act or similar state laws.  Generally, the video is in the possession of the local airport authority, so your request should be made to them, but I highly suggest sending simultaneous requests to both the TSA and the airport.  How?  Read about submitting FOIA requests to the TSA.
  4. You have the right to carry medicinal liquids as a carry-on, even if they are over 3 ounces.  Any liquid that you need for a medical purpose must be permitted through the checkpoint.  It does not have to be a prescription, and you do not need a doctor’s note.  If you have diabetes, you can easily justify a bottle of Gatorade.  If you have a baby, you may bring breast milk.  You also need not detail your condition for the TSA; simply take the items out of your bag to be separately screened and let the screener know that the items are medical liquids.
  5. You have the right to fly without ID.  If you forget, or lose, your ID, you may still travel.  They will simply verify your identity by calling in your information.  Leave extra time for the process, but fear not.  Note that if you can, but simply refuse to, show ID, the TSA’s policy is to refuse to screen you, although that policy does not exactly square with court rulings.
  6. You have the right to speak to a supervisor.  Blue-shirted TSA screeners come in 4 varieties, represented by 0 through 3 stripes on their shoulders.  0 = trainee, 1 = Transportation Security Officer (TSO), 2 = Lead TSO, 3 = Supervisory TSO.  If you have a problem and the person with whom you are speaking has less than 3 stripes, ask for an STSO.  If the STSO still gives you trouble, ask for a Transportation Security Manager (TSM), who will be wearing a suit.  A TSM is required to be on duty in the airport; do not believe any assertions that one is not available — they are.  Finally, if the interaction with the TSM is still unsatisfactory, you may ask to contact the Federal Security Director (FSD), who is a regional airport director and may not be on-site but generally has staffers who are.  Another resource is the TSA’s national “TSA Cares” hotline.  While the name is a misnomer, as the TSA certainly does not care, they may be of assistance at (855) 787-2227.
  7. You have the right to make a complaint.  Ask for a comment card on your way out, and the name of anyone who made your TSA experience more unpleasant than usual.  You can also file your TSA complaints online, but it makes them more nervous when you ask for a paper copy.
  8. You have the right to request a police officer supervise.  Did the TSA just ask to conduct an invasive search on your person?  Feel free to request that airport police supervise the situation.  Most, but not all, airport cops understand that the TSA is a disaster and that 0% of the times the TSA has demanded absurd levels of screening has the target actually been a terrorist.  As the saying goes, “‘I just caught a terrorist!’ said no TSA employee ever.”
  9. You have the right to refuse to take off anything but outer garments.  This includes, obviously, your clothes, but also includes any medical devices, prostheses, etc.  The TSA is not permitted to conduct strip searches.  If you are asked to do anything to the contrary, contact a supervisor and airport police.
  10. You have the right to refuse screening.  I cannot stress this enough: if the TSA demands that you continue screening in a private room, you should refuse.  You may miss your flight, but think about it: if the TSA does what you see at the checkpoint in full view of the world, you can only imagine what they will do if they determine you need “private screening.”  And, if you can’t imagine, let me fill you in: they will be touching your genitals with the front of their hands.  Know also that the TSA has not successfully leveled a fine or any other penalty against anyone for refusing screening, and their current policy is to simply escort the traveler out of the checkpoint.  Your airline will almost certainly re-book you at no cost.  It is your body, and your choice — do not let the TSA persuade you otherwise.  Just remain calm and firm.

Finally, if you have a negative experience, please don’t keep your story to yourself.  I would love to hear your story and may be able to help you to find resources to help.  Be in touch.  And, please share, print, and distribute to help others avoid TSA assholery.


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in “How to Get ANYTHING Through TSA Nude Body Scanners.  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web: https://professional-troublemaker.com/

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