Discrimination Illustrates Security Theater

Last month, ProPublica asked anyone who has had their hair searched by TSA to contact them. The results of that have now been published, confirming that the body scanners find anomalies in certain hairstyles, which happen to also be more prevalent for black women. Not surprisingly, black women repeatedly get singled out for further scrutiny.

A telling quote from a TSA official inadvertently admits that naked scanners are not effective at finding actual terrorists (the purported purpose of TSA) :
"'With black females, the scanner alarms more because they have thicker hair; many times they have braids or dreadlocks,' said a TSA officer who works at an airport in Texas and asked not to be named. 'Maybe, down the line, they will be redesigning the technology, so it can tell apart what’s a real threat and what is not. But, for now, we officers have to do what the machine can’t.' [Emphases added]

You got that? The naked scanners - which violate basic rights to personal privacy and bodily integrity, and apparently discriminate against trans-individuals, black women, and (I would surmise) several other groups of marginalized people - can NOT DISTINGUISH between a real threat and something that is NOT a real threat.

Wolves protecting the sheep

This article is not addressing the narrow topic of naked scanners, but is addressing the broader topic of civil liberties abuses at the hands of TSA. Additionally, I was not aware of the principles described (nor have I investigated further to corroborate):

"Many of the “voluntarily surrendered items,” or items taken from checked baggage by airport security are given to the state government. Food, drink and alcohol are thrown away, but items that are prohibited, including household goods and sharp or dangerous objects are surrendered or confiscated. They are stored by the TSA and some state governments sell them off in online auctions to generate revenue."

So, we can see one way that the interests of the state (to project it's citizens' rights) are captured by a federal agency: TSA steals private property from citizens (and in an Orwellian twist, renames it "voluntary"). The state does not intervene on behalf of the citizen, but looks the other way. As a reward, the TSA gives some of the stolen goods to the state.

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.

TSA will justify any illegal activity...

... as long as they are the ones perpetrating it.

"An investigation revealed over the weekend that the American Transportation Security Administration (TSA) is secretly monitoring and tracking hundreds of American citizens. They’re not on any kind of watchlist — the TSA just deems their flight patterns worthy of suspicion."

Read the rest.

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.

"I Am A Liberal"

As recently as January, Cato published a warning about the use of facial recognition by law enforcement in the U.S.. Add I reported last week, not only is DHS interested in facial recognition technology, they are running trials of it. The Cato column lays out why this is an illiberal, anti-freedom, anti-American idea:

In the not too distant future, our faces will be our “papers.” Police officers won’t need to talk to us, let alone examine ID documents, in order to identify us. Those who don’t appear in a facial recognition network or take steps to avoid facial scan detection will be the subject of extra scrutiny. Unless lawmakers take steps to ensure that only wanted suspects and those with a history of violent crime are included in law enforcement facial recognition networks those who wish to avoid being identified via facial scans will have to take steps that come at high social and economic cost.

England got rid of it's national ID card when one man spoke up and took action,  stating, "I am a liberal, and I am against this sort of thing. "

Passive naked scanning at Penn Station

Passengers at Penn Station are being unwittingly strip-searched. Although software modifications have been applied to mask the privacy invasion, it is nonetheless a privacy invasion to have a machine see through your clothes!

TSA is running a trial of these scanners, stepping individuals as they go up and down an escalator. No warrant or consent necessary!

About that underwear

I have seen this a lot on social media recently: Underwear that shows the 4th Amendment when scanned at an airport. According to the company selling it, it uses metallic ink. They also claim that the words show up in x-rays.

While amusing, this is a scam.

There were several products purporting to do this 8 years ago, when scanners were first introduced. However, it is now obsolete as there is now just an avatar shown to TSA. So this shirt might show up as an anomaly on the chest, leading to a pat-down. But, chances are, an agent will never see the text of the 4th Amendment.

(Furthermore, the scanners are also now using millimeter-wave technology, not x-rays. So, while the metallic text may still be detected by the scanner, I wouldn't trust the manufacturer's word on this.They are clearly ignorant of TSA policy.)

Buy this product if you like the subversive nature of it and don't mind pat-downs. But, if you want to educate the TSA, you'd be better off handing them a pocket-sized Constitution.

Ron Paul on the TSA

Ron Paul and Daniel McAdams discuss the problems with the TSA and how to protect your rights in this 15-minute video.

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? "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.

Double-speak: When "surrendered" means "stolen"

A friend writes:

I was flying from SBA [Santa Barbara airport] to SFO [San Francisco airport].  I only had carry on since I was just going away for 2 nights to a friend's.  I absentmindedly packed my full size (5.2oz) Tom's toothpaste instead of a smaller tube because I had run out of the small tubes and I didn't think the 3oz liquid rule applied to toothpaste any longer.  

I have TSA pre-check, but - for some reason I haven't quite cleared up - United isn't recognizing me as that so my boarding pass didn't have it noted that way and I had to go through the song and dance of taking my shoes off, and going through the scanner. At SBA they require you to remove your liquids from your suitcase when putting luggage through the x-ray no matter who you are.  As a side note, if I had gone to the ticket counter to insist on Pre-check on my boarding pass (because SBA is so small) the only change would be that I could leave my shoes on and I would go through the old school metal detector.   

After I passed through the full body scanner and was waiting for my luggage and bags to come through they pulled my bag of toiletries aside and said the toothpaste violated the 3 oz rule.  I right away said, "Since when is toothpaste liquid? And, by the way, I've gotten that size tube through in the past."  (I may have fibbed there; not quite sure to be honest.)  They then said I could check my luggage if I like.  At this point who wants to get dressed again to then go downstairs, check in a bag (which is going to add 30 minutes to my trip by waiting for it on a carousel in SFO), then come back up to then just get undressed again and go through security again?  In hindsight I should have said OK, then just went back to my car to put my toothpaste in and still done carry-on.  But, I get so annoyed I can't think straight.  

So, after refusing and saying no, the TSA agent advised that I was surrendering my toothpaste.  That is when I lost my cool.  Hell no! I'm not surrendering anything.  I then accused her of stealing my toothpaste and she said, again: no, she was not; that I was surrendering.  I then decided to school her on the difference of surrendering (doing something voluntarily in my book at that point) vs the TSA taking my toothpaste without me agreeing to it (stealing).  I then grabbed my stuff in a huff and went over to a bench to put everything back on and back together.  Then to the bar to have a stiff drink.  

I just want to pause here and look at a couple things.

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!

Masters of arbitrary rules

Just before Christmas travel began, TSA announced yet another "rule" that defies the traditional definition of a rule. Let's review:
When you go to the airport, you may be asked to go through a naked scanner. Unless,
a) There are no scanners installed.
b) The installed scanners are not in use due to maintenance or staffing.
c) You happen to be at the front of the line when the scanner is being used, but a metal detector is available.
d) You have Pre-check. Unless,
d1) You are directed to a scanner anyway.
e) You are randomly selected to participate in Pre-check (but see d1).
f) You opt-out, in which case you will get a physical pat-down.

And now,  the  newest rule:

f1) If you opt-out, you may still be directed to go through the scanner anyway.

Got that?  Here's the TSA's own words:

"'Passengers undergoing screening will still have the option to decline an AIT screening in favor of a physical screening,' agency spokesman Mike England said in a statement. 'However, some passengers will still be required to undergo AIT screenings as warranted by security considerations in order to safeguard transportation security.'"

Double-speak from the TSA

I was so bored by the predictable calls from the Congress to Do Something! that I didn't blog about it here. I didn't expect any elected officials to acknowledge that there might be fundamental issues with a system that peers under passengers' clothing. Sure enough, it is only how a small fraction of the passengers subjected to such incredible invasive procedures are treated that the elected officials think is an issue.

So, we now have a response from the TSA. It is a typical non-response, where they are going to make some superficial changes and promises (always more training!). What is very interesting, though, is that their story is contradicted by an advocacy group:

However, after reading this story and reviewing TSA's comments, NCTE Director of Policy, Harper Jean Tobin, issued a clarifying statement walking back the organization's involvement with TSA. In an email to The Advocate, Tobin said:

"TSA's response completely misses the point. Whatever they call it, a machine flagging someone for questions or pat-downs of intimate body areas just because of their body parts is unacceptable — no matter how politely officers handle it.

While NCTE offers training to government agencies as a matter of course, our training has so far reached a small fraction of TSA staff who don't actually screen people — but most importantly, they haven't retrained the machines. If TSA is going to rely on body scanners at all — and there is plenty of evidence they're not only too invasive but ineffective — they have to be able to tell the difference between a body part and a bomb. Right now they can't, and that needs to change."

Three chears from Harper Jean Tobin for pointing out that these scanners really oughtn't be used on anybody!

An illustration of how inappropriate airport screening is

Another trans woman recently missed her flight and was put through an embarrassing ordeal at the hands of TSA.

There has been a software upgrade on millimeter wave scanners and removal of x-ray backscatter scanners, which supposedly alleviated privacy concerns. And, yet, the scanner can still tell that a person who is dressed like a woman is not anatomically a woman. Furthermore, such flagging by the scanner leads to a hands-on screening that is so personal, it is unclear to the TSA what the gender of the agent should be.

This is a problem. And not just for trans folks.

We should all be able to have a reasonable expectation of privacy for ourselves and our children when we merely want to travel through a modern, convenient, and affordable mode of transportation.

This means, no machines that can see anatomy (or, euphemistically, "anomalies") under our clothes (which, as I have said many times, we wear in large part to cover said anatomy!).

This means, government employees can not touch our body without a legal search warrant.

(So much for the sensitivity of the New York Times. The headline for their article on this topic is, "T.S.A. Defends Treatment of Transgender Air Traveler." Mouthpiece for the powers-that-be much?)

Passive body scanners

There is a new technology that is not only on the horizon, but already in use, according to this article. It passively scans an area (that is, it does not produce radiation, but only detects it) to identify anomalies under clothing. There is no health concern here, but there is a privacy concern. Do you have an expectation of privacy when you are wearing clothing in a public place? If an anomaly is detected, is that reasonable cause for an invasive physical search?

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!

How many years have you been x-rayed without consent or knowledge?

If you live in New York, you may soon find out. It could be that NYPD has not used van-mounted x-rays to view inside occupied buildings or vehicles, and has not used them near pedestrians. But, they have been stonewalling Pro-Publica for the past three years on even being transparent about their safety procedures. Furthermore, NYPD may have databases of x-ray images of vehicles and buildings (yes, the radiation can penetrate metal and concrete) - and perhaps nude images of people - since they apparently have no privacy protection policies in place. But a judge is requiring NYPD to release documentation regarding how these x-ray vans are used.

(Do you suddenly feel like you have entered a science-fiction novel?)

Furthermore, these vans have been in use by the US military in the countries they occupy (yet more trampling on the natural-born freedoms of foreigners), by US Customs at borders (at least they have a policy in place that requires vehicles are not occupied at the time of the scan), and by other law enforcement agencies at conventions and sporting events;

The most extensive reference to the vans came in a book written by two ABC News reporters who chronicled a year inside the agency's bomb squad.

Describing the security around the 2004 Republican convention in New York, they wrote that every vehicle entering a street in front of the convention hotel was ordered to drive between two white vans, which X-rayed each vehicle for explosives.

Aside from the totally outrageous violations of civil liberties that have been going on right under our noses with almost no public awareness, we could delve (once again) into the issue of whether the government can ever be expected to use technology like this responsibly.