A few weeks back, Orin polled VC readers for their views on airport security. The obvious question for those of us who are critical of the TSA’s approach is “what is the alternative?” As a recent House Transportation and Infrastructure hearing, the Consumer Travel Alliance’s Charles Leocha outlined a set of alternative policies that would do away with the backsacatter full-body scanners and intrusive patdowns and rely more heavily on trusted traveler programs. Such an approach may not please some privacy advocates, but focusing on who is flying makes more sense than intrusively searching everyone who seeks to fly. Christopher Elliott believes TSA reform of some sort is inevitable. I hope he’s right.
Archive for the ‘Airport Security’ Category
Thanksgiving weekend is usually the most traveled in the United States. With so many travelers, TSA screening incidents are inevitable. According to reporter Scott MacFarlane, the TSA has received over 17,000 formal complaints about pat downs since October 2009. Since the agency is averaging around 15 complaints per day, some Turkey day mishaps are inevitable. Let’s just hope they’re not as bad as this one or this one or this one.
Safe travels everyone.
The Transportation Security Administration “does not prohibit the public, passengers or press from photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or slowed down.” Specifically, so long as a traveler does not photograph or videotape what’s on the TSA’s monitors, and does not violate any local ordinance, there is no problem capturing the screening process on video. (See also here.) Yet TSA screeners seem not to have gotten this message, as there are repeated incidents of TSA personnel trying to stop people from recording checkpoint incidents. Dana Loesch provides the latest example here, when she was prevented from filming the TSA’s pat down of her husband.
The Hill reports Senate Democrats want to increase air travel fees to make up a shortfall in the Transportation Security Administration’s budget. The stated rationale for the move is that the burden of the TSA should be borne by those who benefit from it, but that’s no reason to charge air travelers.
UPDATE: Kissinger told James Taranto there was “nothing untoward” about his search and that the patdown was necessary because of his leg brace.
Noah Shachtman suggests the Transportation Security Administration may (finally) be adopting a more rational approach to airport security. Let’s hope so.
The new airport screening measures involving millimeter wave technology and backscatter technology — together with the opt-out of a pat-down — have received a great deal of public attention. Back when the new measures were first widely introduced, I blogged about why a Fourth Amendment challenge to the new practices was an uphill battle. Today, the DC Circuit handed down an opinion in EPIC v. Department of Homeland Security holding that the new practices comply with the Fourth Amendment. I believe this is the first clear court ruling on the question, and it’s certainly the first from a federal court of appeals. The opinion is by Judge Douglas Ginsburg, and it was joined by Judges Henderson and Tatel. From the opinion:
[T]he petitioners argue that using [Advanced Imaging Technology] AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives. In view of the Supreme Court’s “repeated refus[al] to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010) (internal quotation marks omitted), and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment.
As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. See United States v. Aukai, 497 F.3d 955, 958–63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499–501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47–48 (2000) (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118-19 (2001) (internal quotation marks omitted).
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. 436 F.3d at 175–76. The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.
It’s a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn’t even think it required any heavy lifting — just a quick paragraph or two. And notably, no one wrote separately. That’s particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.
It is also worth noting that another part of the same decision sends back the DHS rule on procedural admin law grounds, so the ultimate ruling is a partial victory for the challengers to the new policy. I see that Eugene has just blogged on that issue below, so please post any comments relating to the non-Fourth Amendment parts in the thread attached to Eugene’s post.
Thanks to Adam J. White for the link.
Back in March, the Transportation Security Administration’s Blogger Bob trumpeted a study that supported the TSA’s claims about the relative safety of its Advanced Imaging Technology body scanners. Case closed, right? Maybe. The study made several qualifications, and at least one of its co-authors thinks the scanners should be subject to outside testing. Now ProPublica reports she is not alone, citing other scientists who remain concerned, particularly due to the lack of independent testing of in-operation scanners. The TSA may well be correct about the relative risk posed by the scanners, particularly when they are operating as intended, but questions remain.
Reuters reports that Senator Charles Schumer (D-NY) believes the federal government needs to create a “no-ride” list for Amtrak to prevent potential terrorist attacks on trains.
CNN has obtained a list of behavioral indicators that TSA personnel are supposed to use to identify “high risk” passengers who should receive extra scrutiny at airport security. Among the indicators is arrogance or “contempt” toward TSA screening. From CNN:
Many of the indicators, as characterized in open government reports, are behaviors and appearances that may be indicative of stress, fear or deception. None of them, as the TSA has long said, refer to or suggest race, religion or ethnicity.
But one addresses passengers’ attitudes towards security, and how they express those attitudes.
It reads: “Very arrogant and expresses contempt against airport passenger procedures.”
TSA officials declined to comment on the list of indicators, but said that no single indicator, taken by itself, is ever used to identify travelers as potentially high-risk passengers. Travelers must exhibit several indicators before behavior detection officers steer them to more thorough screening.
ABC News reports on the TSA’s invasive pat down of a six-year-old girl, complete with hands along the thighs and inside the waist-band. (Video at the link.)
The Drexels said they stood powerless, watching as their daughter was patted down.
“I did ask for alternatives, I asked for her to be rescanned,” Selena Drexel said. “They just refused and said they were going to do what they were going to do.” . . .
The girl’s father said that while his daughter was polite and respectful during the screening, she broke down into tears afterwards. . . .
“We struggle to teach our kids to protect themselves, to say ‘no, it’s not ok to touch me in this way in this area,” the girl’s mother, Selena Drexel, said. “Yet here we are saying it’s ok for these people.” If we don’t find other ways we’re making them more vulnerable, she said.
The TSA says the relevant officers were following the applicable procedures.
A video taken of one of our officers patting down a six year-old has attracted quite a bit of attention. Some folks are asking if the proper procedures were followed. Yes. TSA has reviewed the incident and the security officer in the video followed the current standard operating procedures.
CNN reports that the Transportation Security Administration has decided it will no longer approve applications from airports seeking to replace TSA screeners with private contractors. This is an abrupt reversal from the agency’s alleged “neutral” stance it announced just several weeks ago.
TSA chief John Pistole said Friday he has decided not to expand the program beyond the current 16 airports, saying he does not see any advantage to it.
Though little known, the Screening Partnership Program allowed airports to replace government screeners with private contractors who wear TSA-like uniforms, meet TSA standards and work under TSA oversight. Among the airports that have “opted out” of government screening are San Francisco and Kansas City. . . .
“If airports chose this route, we are going to work with them to do it,” a TSA spokesman said in late December.
But on Friday, the TSA denied an application by Springfield-Branson Airport in Missouri to privatize its checkpoint workforce, and in a statement, Pistole indicated other applications likewise will be denied.
“I examined the contractor screening program and decided not to expand the program beyond the current 16 airports as I do not see any clear or substantial advantage to do so at this time,” Pistole said.
CNN reports that Rep. John Mica (R-FL) plans to investigate the TSA’s abrupt change in policy.
This year’s holiday travel was relatively uneventful. We avoided the blizzard-induced air traffic snarl, and didn’t even see (let alone have to use) a body-image scanner. The only real problem was the TSA inspection of one checked bag. It wasn’t anywhere near as bad as what some have endured, but it was annoying nonetheless.
I’ve had checked bags searched by TSA quite a few times. In the past, I would open my bag to find a small paper notice that the TSA had gone inside my suitcase to investigate one thing or another, but everything arrived intact. Beyond the occasional mussed shirt, the TSA notice was the only sign of an inspection. Not this time. Upon returning home I opened my suitcase and it was a mess. The contents were upended and switched around. I presume my toiletry bag contained the item(s) of interest, as it had been on the bottom but was now on top, and nothing else was as it had been packed, let alone neatly folded. To top it all off, my bag’s zipper was now broken andthere was no TSA notification.
Abandoning the TSA might not improve customer service, but I doubt it would make it any worse.
[Note Edited after initial posting.]
The Washington Post reports that more airports are considering whether to hire private contractors to replace TSA personnel for airport security. Such a shift would not alter the screening protocols — these requriements are imposed by federal regulations independent of whether TSA personnel man the security checkpoints — but could alter the efficiency and attitude with which screening is conducted.
For airports, the change isn’t about money. At issue, airport managers and security experts say, is the unwieldy size and bureaucracy of the federal aviation security system. Private firms may be able to do the job more efficiently and with a personal touch, they argue.