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.

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.

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...

Blask: Are these TSA claims true?

An airport director has made some surprising claims about naked scanners:

"'It allows TSA to process our passengers faster,' said Airport Director Kip Turner. 'It’s the same kind of equipment you see at most airports now.'

"The body scanner also reduces the number of pat-downs, he said."

On speed, walking through a metal detector is faster than standing still in a scanner for several seconds Additionally, the metal detector only requires that you remove metal objects - not all objects - from your pocket. Are there any studies that compare processing at metal detector-only checkpoints and naked scanner checkpoints?

I wonder if Mr Turner is referring to using the naked scanner in addition to the metal detectors. If 1 passenger  can be scanned while 3 walk through the metal detector, then that would increase processing by 33%. However, adding a second metal detector would increase processing by 100%, so it's not an apples-to-apples comparison to say the scanner is inherently faster. This is all assuming my guess above about scanner inefficiency is correct.

On pat-downs, I  am baffled. Prior to 2008, pat-downs were virtually non-existent. If you triggered the walk-through  metal detector, they used a handheld wand to isolate the problem. In my experience, one was frequently allowed to remove the offending metal and walk through the detector as many times as was necessary to pass. I assume that people with metal implants would get localized pat-downs, but the majority of passengers were sent on their way. Certainly, full-body pat-downs using a pre-custody search method were unheard of.

My understanding of naked scanner use - ignoring opt-out pat-downs, which are presumably still a small minority - is that many scans identify anomalies that require a full or partial pat-down. These anomalies are not resolved by the equivalent of a hand-held wand, and visual inspection followed by re-scanning is against policy.

Now that scanners and pat-downs are policy, are the TSA  patting down more passengers who trigger the metal detector? In other words, is Mr Turner's comment,  again, less to do with the efficiency of the two technologies and more a reflection of new policies? Or is he just wrong that there will be fewer pat-downs?

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.'"

Yikes! Qylatron?

Sometimes there is something unassuming in the news that shocks me.

I wonder how many 49ers fans are aware that they may soon be guinea pigs for some invasive screening. I have no idea what this technology is, aside from a brief explanation from USA Today:

Radiation and chemical sensors survey the passers-by for explosives, X-ray machines scan for weapons, and a color-coded light array gently guides users through the process with green, red and purple prompts.

It is supposed to passively search large crowds so that there are minimal bottlenecks (since private companies are quite interested in not irritating their customers). But, will there be some sort of notification in the fine print on tickets?

(I also find it interesting that the article notes that Disneyland Paris tried this technology.)