"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. "

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.

Why not? "TSA’s Layers of Security"

Here we continue our series on public comment on TSA's naked scanners (aka, AIT, Advanced Imaging Technology) during their belated Notice of Proposed Rulemaking (NPRM):

Commenters addressed the TSA layers of security discussed in the NPRM. A privacy advocacy group suggested that the layered approach discussed by TSA is not supported by data and, therefore, does not justify the need for AIT. The commenter also recommended that TSA revise the layered approach so weaknesses in security can be identified. Furthermore, a few commenters suggested that TSA focus on other security methods, such as profiling, interviewing, and “Pre-check” screening programs to identify dangerous individuals. An individual stated that the efficacy of AIT screening has not been scientifically proven. The commenter further suggested that since there are other approaches used by TSA to identify potential threats, AIT would be most useful as a secondary screening method instead of as the primary screening method A professional association, however, stated that because of the advanced methodologies of adversaries, technologies like AIT scanners are needed to secure air travel. The commenter suggested that techniques involving human intervention, such as Screening Passengers by Observation Techniques, the Behavioral Detection Officer program, and passenger screening canines would also be useful. Many commenters mentioned their support for the use of racial profiling tactics instead of AIT, and argued that such measures would be more efficient and effective. 

An advocacy group alleged that TSA’s “trusted traveler program” approach would weaken security because it can eliminate entire classes of passengers from AIT screening. The commenter recommended that TSA consider other, less invasive and cost-effective screening procedures that would allow TSA to implement AIT as a secondary, rather than a primary, screening tool. Furthermore, the commenter suggested that TSA enhance layers of security by testing canine bomb detection, face recognition, and explosives residue machines, in an effort to reduce the need for AIT scanning.

Why not? "Evolving Threats to Security"

We are continuing to examine the public's thoughts on naked scanners. This next section is titled "Evolving Threats to Security," and highlights both favorable and unfavorable reviews:

Commenters also addressed the evolving threats to aviation security discussed by TSA in the NPRM. Some commenters stated that TSA’s screening efforts are not linked to the decrease in aircraft-related terror attempts since September 11, 2001. For example, individual commenters and a non-profit organization stated that the threat attempts listed in the NPRM were thwarted by intelligence efforts, not TSA screening. Other individual commenters, however, supported TSA’s efforts to deploy tools like AIT scanners to detect and deter future attacks. Individual commenters credited secured cockpits and stricter policies for cockpit access with preventing terrorist attacks on commercial airlines since September 11, 2001. Furthermore, a few individual commenters suggested that in addition to enhanced cockpit security, passengers’ awareness and willingness to fight back deters terrorists from targeting planes. 

Several commenters discussed the evolving threat from nonmetallic explosives. A few individual commenters suggested that TSA’s response to the increased threat of nonmetallic explosives is not sustainable because terrorists will find other ways to hide devices. A few individual commenters disagreed with TSA’s focus on nonmetallic threats, because these types of weapons have been used for several decades.  

A few individual commenters suggested that the long lines at checkpoints, which the commenters stated are caused by TSA screening, are more attractive targets to terrorists than airplanes. Lastly, several individual commenters stated there is no evidence indicating that terrorist threats similar in magnitude to September 11, 2001, are increasing.

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.

Journalism student at UC Irvine gets it right

I love this editorial by Roy Lyle. He asks, " Isn’t the better answer, though, just not to scare so easy?" after exposing TSA's security theater.

Legal child molestation

A father posted a video of his 10-year old daughter getting a TSA enhanced pat-down after they found her smuggling a Capri Sun (Horrors!) through security. Watching this video literally made my stomach turn, and it is an excellent reminder of why my children and I haven't flown since widespread use of the scanners and associated pat-downs.

It is also disturbing to read the defenses of the TSA procedures in this case. For example, one blogger wrote:

Sure, it probably felt awkward to be singled out. And yes, it was inconvenient. But I’m having a hard time understanding how this simple pat-down crossed any lines.

 "Awkward" and "inconvenient" are not nearly strong enough words for how I would feel about be the object of such a pat-down, let alone how a child might feel or a loving parent might feel seeing this happen to their child. I will grant that I am more sensitive than some (many? most?) others; my husband, for example, opts-out and feels akin to "awkward" and "inconvenienced". But, some of the words I would use if this applied to me or my children are: Violated, Molested, Assaulted, etc...

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?)

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!

A TSA apologist in Connecticut

Yes, there are still people who publish about how hard it is to be someone on the state's payroll doing things that are otherwise illegal. Jim Cameron wrote an opinion piece in the Easton Courier that actually says we should lay off because TSA agents are only doing their job. Just like British troops in colonial America, Nazis, Soviet Gulag Guards, and Saddam Hussein's henchmen. The whole point is that it is not heroic to take a paycheck to abuse the rights and privacy of innocent civilians. That's why we must make TSA agents think twice about what they're doing.
He then goes on with "evidence" about how the TSA agents keep us safe. The proof is all of the weapons they seize. Nevermind that these weapons trend to be legal and in the possession of non-criminals who usually just forget to remove them from their bags before they get to the airport. So the TSA agents are not protecting anyone; they are just taking property from innocent travelers. (I'm not sure what his point is about the woman who faked a bomb threat...seems neither here nor there for this discussion.)
The last thing I want to take down from this op-ed is this:

Remember the holy triad of service: Fast, good and cheap. You can achieve any two of those, but not all three. Clearly, the top priority is “good” security. So, in this era of sequestration, we’re unlikely to see quality compromised for speed or lower cost.

The TSA is not a business, it is a government bureaucracy (and a bloated one at that). There is no service being provided, no calculation on the trade-offs between profit and loss. It is supremely naive to think that the institution of federal airport security can ever consistently achieve even one part of the service triad.
So far, the evidence is on the side of those who give TSA agents grief: security is not fast, not good, and not cheap.

Chris Elliott on giving in to the TSA

A nice article in USA Today.

Yahoo! "Who else refuses to travel because of TSA?"

Here is the comment I just left on Yahoo! answers, when someone asked if anyone has quit flying due to the TSA:

I have not flown since 2010. I have anxiety over 1) the possibility of being touched by strangers, and 2) putting my children through an experience where they are treated like a criminal. 

The last time I flew was an ordeal, as I had a baby with me. Try getting through security with a just-barely walking baby: get your luggage on the x-ray belt, including hiking your stroller up there. Get your jacket and shoes off. Get your child's jacket and shoes off. Carry child through metal detector after fruitlessly trying to get her to walk through alone. Unpack snack bag (which includes milk and ice packs, because children have small stomachs and eat constantly and with security, you're traveling all day) to be tested for who knows what. Now, repack your snacks. Get all of your luggage off the x-ray belt. Dress your baby. Dress yourself. 

No thank you. I have been traveling by train with my children - quite relaxing and enjoyable. Tickets are not bad for long-distances. Sleeper cars are expensive, but worth it for an overnight trip. Station locations and schedules can be a bit inconvenient for some destinations. There are several options for eating, moving around, socializing, etc... When I arrive at the station, I just go right for a red cap now, so it is super easy, but when I traveled lighter, it was a breeze getting onto the train and much less stressful than an airport. 

PS I used to fly about twice a year before quitting. Pre-9/11 was so easy - I actually flew about 10 times in 2000 - such a huge difference in 10 years!

So, now you know!

How to fly and keep your dignity

Love this column giving ideas of tactics to use while flying under the tyranny of the TSA. His first suggestion, to be mentally prepared, is really key. Appearing sympathetic to fellow-passengers, both in appearance and temperament, are also smart ideas. And this is all devised to make sure you actually catch your flight on time.

If you need some source material for his last suggestion of printing out copies of anti-TSA exercises and leaving them in the airport, there are several links on the blogroll at right to choose from.