James Bovard on the TSA's Watchlist

Of course, it's not a terrorist watchlist. It's aimed at self-respecting travelers, who have no criminal intentions but make the TSA workers feel ashamed. Read James Bovard's take.

Does the TSA profile? Does it matter?

A recent Cosmopolitan article looks at the possibility of racial profiling by TSA:

"Between May 13, 2015 and March 13, 2017, 98 black women filed hair-search complaints with the TSA, according to the records from the Multicultural Branch. That number is likely a small fraction of the women who felt they were inappropriately searched, as my FOIA request for complaints filed regarding specific airports in several cities uncovered an additional 85 complaints, and of course many women may not know they can file a complaint at all. While the TSA states on its website that searches are not conducted with regard to race, these complaints from black women across the country raise serious questions about whether that's true."

Regardless of whether this is due to racial profiling, we have fundamental rights violations occurring at airports everyday. It isn't really surprising that minority groups feel singled out, when we give state employees so much power.

It's not like it would be okay for black women to have their hair searched so long as white women had their hair searched in proportional numbers. Or that it would be okay for women to have their hair searched so long as men also had their hair searched an equal number of times. The violation of another person's rights does not make my own rights violation less, well, violating!

How about no hair searches by a government official unless a warrant is signed by a judge using the traditional American standards for search warrants. In case your civics lesson is fuzzy:

"A judge issues a search warrant to authorize law enforcement officers to search a particular location and seize specific items. To obtain a search warrant, police must show probable cause that a crime was committed and that items connected to the crime are likely to be found in the place specified by the warrant."

The entire TSA process is a rights violation. Fighting between protected classes about who is more oppressed is taking our eye off the common oppressor.

Court: Protests are not free speech when the TSA is involved

What happens if you do the obvious: insist on an actual strip search to protest a virtual strip search? Hopefully, the courts protect your 1st Amendment right to protest. But, they may also find you guilty of violating the unlawful orders of an unlawful agency, then hold you liable for the bloated agency's over-reaction.

Would you accept the guilty verdict and pay the modest fine, content that your free speech argument was partially honored? Maybe you would appeal to a higher court. This is what the protestor from 2012 did.

Unfortunately, the appeals court recently maintained his conviction: You can't voluntarily strip naked at a TSA checkpoint.

Contempt of TSA

There is good reason to hold the TSA in contempt, and it goes beyond the contempt it shows for airline passengers' civil liberties. Jim Harper of the Competitive Enterprise Institute explains:

    "TSA has shown contempt for the administrative laws that govern it. It slow-walks processes and policies that are meant to keep it responsive to the public."

The CEI is continuing to use existing legal procedures to press the TSA on its policies.

Why not? "Other Legal Issues"

This is the next part in our series highlighting the issues addressed by the public during the TSA's belated request for public input on the naked scanners (aka, AIT, Advanced Imaging Technology):

Commenters raised other legal issues in opposing AIT. Several individual commenters, a non-profit organization, and several advocacy groups stated that AIT scanning and/or opt-out process violates rights guaranteed by the First, Second, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments, respectively. Commenters did not generally provide further substantive legal arguments in support of these constitutional claims. An advocacy group, however, cited a Supreme Court case, Aptheker v. Sec’y of State, 378 U.S. 500, 505 (1964), which held that if a law “too broadly and indiscriminately restricts the right to travel” it “thereby abridges the liberty guaranteed by the Fifth Amendment.” The commenter further stated that the court considered relevant “that Congress has within its power ‘less drastic’ means of achieving the congressional objective of safeguarding our national security.” An individual commenter cited U.S. v. Guest, 383 U.S. 745 (1966) and Shapiro v. Thompson, 394 U.S. 618 (1969) in opposing the use of AIT. Another advocacy group cited 49 U.S.C. 40101, 40103, and the International Covenant on Civil and Political Rights, a treaty that the U.S. has ratified, as further reinforcing the right to travel. The commenter remarked that the NPRM does not recognize that travel by air and, specifically, by common carrier, is a right and that TSA must evaluate its proposed actions within that context. Similarly, an individual commenter stated that TSA’s use of AIT involves limitations on constitutional rights and, therefore, strict scrutiny should be the judicial review standard applied. Another individual commenter stated that implementation of AIT scanners assumes travelers’ guilt, which is in violation of the principle of the presumption of innocence.

One individual commenter stated that it is outside of TSA’s mission to identify and confiscate items that are not a threat (e.g., illegal drugs) and that such “mission creep” is an inappropriate use of Federal funds and distracts TSA staff from their actual mission. Other individual commenters stated that AIT and pat-downs violate laws prohibiting sexual molestation. A non-profit organization suggested that TSA review and modify its policies to ensure that they do not conflict with existing state law procedures protecting children from physical and sexual assault or with existing child protective services legislation.

Why not? "Fourth Amendment Issues"

Here is the next installment of public opinion about TSA's naked scanners:

Commenters also addressed concerns related to the Fourth Amendment. The vast majority of these commenters stated that use of AIT constitutes a violation of Fourth Amendment rights. Individual commenters stated that AIT fails to meet the standard of a constitutionally permissible search. Specifically, some individual commenters stated that TSA could not conduct such searches without a warrant. Individual commenters also stated that neither the purchase of an airline ticket nor a desire to travel is sufficient to give TSA “probable cause” to conduct a search.  

Why not? "Adherence to the Court Decision in EPIC v. DHS"

This is the next part in our continuing series of posts about public response to the TSAs naked scanners rules:

Commenters also discussed the court’s decision in EPIC v. DHS. Several individual commenters specifically supported EPIC’s position that AIT scanners are invasive of individual privacy. Another individual commenter opposed the court’s decision to allow TSA to continue use of AIT [Advanced Imaging Technology]. A privacy advocacy group wrote that the NPRM [Notice of Proposed Rulemaking] incorrectly stated the holding of the case. A privacy advocacy group and many individual commenters pointed out the length of time that elapsed between the court decision and the issuance of the NPRM. A privacy advocacy group stated that it filed three mandamus petitions during the elapsed 2-year period. An advocacy group stated that the constitutional issue raised by EPIC was not ripe for decision because the court did not have a rulemaking record before it and speculated that the court might invalidate its holding regarding the Fourth Amendment in a future judicial review of this rulemaking.

Why not? "Compliance with the Administrative Procedure Act"

This is the fourth part of our series re-publishing the public's comments about naked scanners (aka AIT, Advanced Imaging Technology), specifically, whether the TSA has complied with the Administrative Procedure Act (short answer: No.).

Some commenters addressed concerns related to the Administrative Procedure Act (APA). Generally, commenters stated that TSA has not complied with the APA’s procedural requirements. Non-profit organizations, a privacy advocacy group, and individual commenters stated that TSA did not comply with APA requirements prior to initial deployment of AIT. A privacy advocacy group stated that the agency received two petitions signed by numerous civil liberties organizations to institute a rulemaking proceeding, yet failed to initiate such a proceeding. A few individual commenters stated that if TSA had initially complied with rulemaking procedures, the public likely would have rejected the proposed action, and TSA would not have been able to deploy the technology. A privacy advocacy group and an individual commenter raised further concerns regarding the money spent on the deployment of AIT despite the lack of opportunity for public comment.

Why not? "Congressional Directive to Deploy AIT"

As part of our continuing series on the public's comments about why the TSA should not use naked scanners, here is the TSA's summary in a section titled, "Congressional Directive to Deploy AIT [Advanced Imaging Technology, aka naked scanners" (Part E).

Some commenters addressed the 2004 congressional directive discussed in the NPRM regarding the development and deployment of new screening equipment. An individual commenter noted that this congressional direction specifically included the investment in and deployment of AIT. Other commenters, however, stated that TSA’s implementation of AIT is inconsistent with congressional direction.

Why not? "Authority to Use AIT"

This is part of our continuing series on the public's comments about naked scanners. Here, the TSA summarizes comments regarding "TSA Authority to Use AIT [Advanced Imaging Technology, aka naked scanners]" (Part D):

Many individual commenters stated that TSA has overstepped its authority by deploying AIT and that the agency itself should be eliminated or that AIT should be eliminated as a screening technology. Additionally, many individual commenters stated that responsibility for airport security and the costs should be returned to either the owners of airports or the airlines.

A non-profit organization referenced 49 U.S.C. 44903(b)(2)(A) and 49 U.S.C. 44903 (b)(2)(B) to support its statement that the proposed rule is inconsistent with statutory requirements to protect passengers and the public interest in promoting air transportation. The organization stated that TSA is not authorized “to sexually assault passengers” under current statutes or regulations. An individual commenter stated that TSA, as a Federal agency, has no jurisdiction over public airports, which the commenter stated are mostly on state land. Another individual commenter alleged that the Administrator of TSA acted illegally implementing AIT and stated he should be removed from office and charged accordingly.

Why not? "Opposition to AIT"

This is the first part of our continuing series highlighting the American public's concerns over TSA security. This is the summary of comments compiled under the sub-heading, "Opposition to AIT" (part C).

Many submissions included statements of opposition to the continued use of AIT. Of these, individual commenters expressed concerns pertaining to efficacy, privacy, health, cost, and civil liberties. TSA addresses each of these topics in subsequent comment responses in this preamble. Some individual commenters also expressed criticism of TSA and its staff. Some comments included statements requesting the elimination of AIT. 

Other commenters made statements regarding the impact of AIT screening on their travel choices.

New Series: Why Not? The public's concern about naked scanners

The TSA has finally responded to public comment about naked scanners. I will highlight on this blog the various reasons that over 1,000 individuals and organizations have expressed concerns over TSA security.

Time travel at the TSA

This just in:

New airport security measures go into effect in 60 days. These security measures have been used by the TSA since 2008.

I guess the TSA has discovered time travel!

If you think I'm making this up, here's the entire excerpt I'm summarizing:

Airports: The Transportation Security Administration (TSA) is moving forward with new airport security measures. 

Airport security officials will employ advanced imaging technology — better known as full-body scanners — to screen passengers for explosive devices and other weapons. 

TSA has been using full-body scanners since 2008, but a federal court ordered the security agency to go through the formal rulemaking process. 

The rule goes into effect in 60 days.

On the new TSA opt-out rule

There has been regular media coverage of this story about the TSA'S "You can opt-out, except when you can't" rule.  However, it had been uniformly boring and uncritical. It also seems that the lower the TSA  is in existence, the more the public is cowed, so most quotes from travelers and comments on media reports are not critical of this absurdity. What a pleasure to see someone take the TSA to task at the New American!

An Administrative Victory

Eight years after the TSA began installing naked scanners (and five years after wide-spread airport scanning), it has finally been told to comply with the basic administrative procedure of gathering public comment and issue a final rule. It has 30 days to comply (on top of the 4 years spent ignoring the original court order to comply, on top of not doing it at all for the 4 previous years).

I'm a cynic, so, while I appreciate the Competitive Enterprise Institute's standing firm on this, I don't see any significant changes on the horizon due solely to the TSA finally complying. However, this should at least alert some of the public and Congress to the status of TSA as a rogue agency. Even their final rule will have to ignore comments like mine if anything short of removing the scanners occurs.

A very belated follow-up on Andrea Abbott

My previous post had me searching my own archives to recall what bad publicity occurred before the TSA changed their policies for children. I stumbled across the story of the brave truth-teller, Andrea Abbott. In 2012, she was in fact convicted of disorderly conduct and sentenced to probation. Here's an excerpt from the foxnews.com coverage at the time [emphasis mine]:

Abbott and her daughter went through a metal detector and TSA Officer Karen King was sent to conduct a pat-down. King testified that before the pat-down, Abbott yelled in her face that she didn't want anyone "touching her daughter's crotch."

...[The prosecutor] said the officers reminded Abbott several times that she could file a complaint if she had a problem with the security check proceedings.

"You can speak your mind, but you can't do it in an illegal manner," she said. "What the defendant did was a crime."

The case briefly drew national attention as hundreds offered Abbott support and donations amid debate over whether new, intrusive screening methods should be allowed at airports.

"Since 9/11, we're losing a lot of freedom, and we have to draw the line somewhere," Horst [Abbott's pro-bono attorney] said in closing arguments.

The "illegal manner" that Abbott used was apparently using curse words while otherwise remaining amazingly calm in the face of the legalized molestation of her child and attempted sexual assault of her own person. Nullification, people!

Pointing out the arrogance of the TSA

The TSA has, again and again, not followed the law. The Rutherford Institute is fighting the good fight by using the legal system to try to hold the TSA accountable. Since they collected public comments 2 years ago, the TSA has not issued final rules regarding the naked scanners. This lawsuit is another one in the serious to enforce the existing impotent law.

A glimmer of 10th Amendment hope...

...then the hope us extinguished by a Republican politician. According to this news article, Ohio has laws on the book that prohibit the use of x-rays except as prescribed by a doctor. This means that, technically, the TSA can't legally irradiate people in Ohio airports. But a more winnable test case has arisen with the recent spate of jails using naked scanners on inmates (Tuskeegee, much?).

A sheriff in Ohio bought a scanner similar to, but more powerful than, the airports' naked scanners. It is made by a subsidiary of Canon, and is designed to see inside of people to stop smuggling and theft. Well, the Ohio state health department has shut it down (sanity, at last!).

But, of course, a GOP state senator is doing his best to get the ban lifted. Shameful.

The courts don't protect us

Case in point is this dismissed lawsuit.

Comment submitted (finally!)

Here is the comment that I just submitted to the feds (better late than never!). (Disclaimer: It's not my finest work.):

I would like to direct my comments for Docket No. TSA-2013-0004 towards two areas of the AIT rule. First, I object on privacy grounds, and, second, I object on safety grounds to the implementation of AIT screening. My recommendation is that the AIT screening program be stopped immediately.

In part IB of the NPRM (Summary of Major Provisions), it says, “AIT currently provides the best available opportunity to detect non-metallic anomalies concealed under clothing without touching the passenger…” followed by, “TSA implemented stringent safeguards to protect the privacy of passengers undergoing AIT screening when AIT units were initially deployed and enhanced privacy further by upgrading it millimeter wave AIT units with ATR software.” As a modest woman who also chooses to raise her children to be modest, I strongly feel that these two statements are contradictory and can not be reconciled. If you are viewing anything under my clothing, or the clothing of my daughter or son, then you are not protecting my privacy. It does not matter to me that the area under my clothing is not seen directly with the naked eye of an individual that I can see, or if a machine is viewing the area under my clothing and transmitting that image either to an individual in another room or to a software program that interprets the image.

This goes to a very fundamental aspect of humanity and, in particular, to a prevalent strain of modesty in America culture bridging across people of various faiths, ethnicities, and backgrounds. Humans wear clothes not only for decorative reasons, but also, and, in some cases, especially, in order to be modest. Anything under the clothes is intentionally hidden, not intended to be viewed by man or machine without express consent (that is, uncoerced undressing). It is, in practice, impossible to take protect passenger privacy while simultaneously forcibly viewing anything that is under passengers’ clothes.