Court Limits on TSA Searches

This is good news:

A federal judge in June threw out seizure of three fake passports from a traveler, saying that TSA screeners violated his Fourth Amendment rights against unreasonable search and seizure. Congress authorizes TSA to search travelers for weapons and explosives; beyond that, the agency is overstepping its bounds, U.S. District Court Judge Algenon L. Marbley said.

"The extent of the search went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing," Judge Marbley wrote.

In the second case, Steven Bierfeldt, treasurer for the Campaign for Liberty, a political organization launched from Ron Paul's presidential run, was detained at the St. Louis airport because he was carrying $4,700 in a lock box from the sale of tickets, T-shirts, bumper stickers and campaign paraphernalia. TSA screeners quizzed him about the cash, his employment and the purpose of his trip to St. Louis, then summoned local police and threatened him with arrest because he responded to their questions with a question of his own: What were his rights and could TSA legally require him to answer?

[...]

Mr. Bierfeldt's suit, filed in U.S. District Court in the District of Columbia, seeks to bar TSA from "conducting suspicion-less pre-flight searches of passengers or their belongings for items other than weapons or explosives."

I wrote about this a couple of weeks ago:

...Obama should mandate that airport security be solely about terrorism, and not a general-purpose security checkpoint to catch everyone from pot smokers to deadbeat dads.

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is "implied consent," which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is "plain view," which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that.

Both of these principles are well established and make sense, but it's their combination that turns airport security checkpoints into police-state-like checkpoints.

The TSA should limit its searches to bombs and weapons and leave general policing to the police -- where we know courts and the Constitution still apply.

Posted on July 8, 2009 at 6:42 AM • 85 Comments

Comments

badfishJuly 8, 2009 7:06 AM

Actually, if we take the doctrine of "implied consent" to its conclusion, the government could simply declare that (for example) using a public road constituted "implied consent" to being searched, and that the police could therefore search anyone who ventured off their own property.

In reality, the reason that people allow themselves to be searched at airports is that, if they do not, they are penalized by missing their flight, which usually has major economic consequences for them (but none for the TSA). Is that really "consent", or is it just giving in to blackmail?

PfootiJuly 8, 2009 7:07 AM

As usual, worth noting that it's due to these security procedures that I don't fly anywhere that I can drive to in 15 hours or less anymore. It just makes me feel very uncomfortable to be in the presence of the New Police State, and the degree of cynicism that airports evoke in me is just not worth dealing with.

PeteJuly 8, 2009 7:22 AM

I would think that real law enforcement types would be miffed by these TSA guards. Law enforcement must meet rigorous standards in most jurisdictions to certain education and physical levels. By the appearance of some of the TSA guards I have seen they are NOT tough on the physical standards.

What I find confusing is I often see more than one uniform type at checkpoints. So who the hell is who. One thing I will say for Europe, you have no problem identifying the law enforcement types. And real customs agents are doing the screening.

Personally I do not fly if I do not have to. I just don't like these people going through my stuff. And no I don't want to be Xrayed either, albeit it is less of an inconvienience. From a tactical perspective, (I am a retired soldier) all these checkpoints have done is pushed a soft target closer to the main entrance of most airports. This is especially true of mid size airports. I have never waited at a checkpoint with less than 40 people around me. people exposed to or in direct sight (20 meter distance) of an exterior entrance that has no guard and usually drive up access. But there is a recording telling you not to park there because of some federal regulation. Thank goodness we have a regulation, I feel safer already.

Sorry, little bit of a rant...
I used to love flying. Now I loathe it!

bobJuly 8, 2009 7:24 AM

w00t! Constitution ftw! Defibrilate that bill of rights, it can be saved! Rumours of a DNR are false! (of course this isn't the Supreme Court and by the time it gets there, there will be at least one more "shut up comrade and queue up govt know best" on the bench)

@Pfooti: Exactly. I'm in Ohio and I wont fly anywhere this side of the Mississippi river because I can probably drive there quicker (or in my case fly myself, while that's still legal), by the time you add in an extra 200% time for the govt BS; and that completely overlooks the social and emotional cost of having to suspend selfness for the duration. And then add in the airline treating you as lower-than-luggage...

Jeremy D. YoungJuly 8, 2009 7:35 AM

"where we know courts and the Constitution still apply" -- Unfortunately I think this is quite an optimistic statement. We're going to have to ratchet up the fight to return to a land where that statement is true.

Look into the local Campaign for Liberty group in your area. That organization is fighting hard for our Constitutional rights from the preamble to the 27th amendment.

I'm glad to see Steve Bierfeldt's story mentioned.

SoWeJuly 8, 2009 8:31 AM

What I'd like to know is which (if any...) rights a visitor to the United States has? What I heard is that you don't have any rights, the immigration officers can keep you from getting into the country at will and if you're particularly unlucky you get deported (to Guantanamo Torture Bay). How much of that is true? How is it?

greetings

sooth sayerJuly 8, 2009 8:42 AM

The 4th amendment is supposed to protect against illegal search and seizure - but what the heck is someone doing with fake passports?

Some of the judges have nuts for brains - is this a security blog or ACLU discussion group?

timJuly 8, 2009 8:53 AM

@Pfooti and bob

It makes me wonder how you two get through life on a day to day basis. The procedures at the airport are idiotic but really no less intrusive than they were before 9/11 (at least the agents speak english now). I've spent less then 10 minutes in a TSA line on the dozens of flights I've taken this year (dulles, mpls, midway, etc). And saying its a "police state" just points how that you have no idea what a "police state" really is.

Saying that I applaud this ruling.

MJuly 8, 2009 8:56 AM

1. security blog = true
2. ACLU discussion group = no
3. When did "Civil Liberties" become a 4 letter naughty-word-phrase for you?

squallcomJuly 8, 2009 9:19 AM

SoWe asked:
What I'd like to know is which (if any...) rights a visitor to the United States has?

The shortest possible answer is:
Immigration can prevent you from entering for any reason, or no reason.

Once you have entered, you have most of the legal protections that citizens have. If Immigration is called in a dispute, they can choose to deport you for many reasons. You do have some ability to appeal this kind of deportation. If there is an error in your visa, you get sent back home.

A good rule of thumb is: do not go to the United States if you can't risk being sent back to your own country's prisons for interrogation by your own police.

Very few people, even really, really, suspicious people are disappeared to Guantanamo or elsewhere, but it is a non zero chance. Immigration, the TSA, and the police can threaten you with anything, and are permitted to lie to you. They are not permitted to lie about you, however, and risk getting into trouble for doing so.

LaertesJuly 8, 2009 9:26 AM

It's funny. I remember when this kid was arrested and the audio recording was made public. Lots of people wrote about it and it was a big stink.

Didn't hear anything about the fake passports at the time.

Thomas JeffersonJuly 8, 2009 9:28 AM

The Constitution provides no rights to visitors, only Citizens.

FPJuly 8, 2009 9:32 AM

@sooth sayer:

The ruling doesn't say or imply that it is legal to have fake passports. It just says that the fake passports were found during an illegal search, because the TSA agent kept searching even after determining that there was nothing dangerous in the luggage, and thus aren't admissible evidence.

It's just like the traffic cop searching the brown bag in your passenger seat even after determining that you're not intoxicated.

jeffJuly 8, 2009 9:34 AM

@Laertes,

Two separate cases. Steven Bierfeldt didn't have fake passports.

OrvilleJuly 8, 2009 10:02 AM

@TJ
"The Constitution provides no rights to visitors, only Citizens."

And your point is? We can mistreat foreigners to satisfy your sadistic urges?

John JayJuly 8, 2009 10:14 AM

@Orville & TJ:

While this continues not to be a civil liberties blog, note that the US Constitution provides no rights at all. Instead, it recognizes certain rights and prohibits the government from interfering with them. The government's capacity to control the borders arises from the fact that it's not prohibited from doing so.

Rule of lawJuly 8, 2009 10:17 AM

Oh it was ok because he was obviously shifty. This statement demonstrates a total lack of understanding of law and what rule of law means.

Brandioch ConnerJuly 8, 2009 10:20 AM

But you missed the best part.

"TSA spokesman Greg Soule says airport screeners are trained to “look for threats to aviation security” and discrepancies in a passenger’s identity. TSA says verifying someone’s identity, or exposing false identity, is a security issue so that names can be checked against terrorism watch lists."

And anyone who believes that "watch lists" provide ANY benefit at all should immediately be fired.

Another thing, why is the TSA wasting money on a "spokesman"? Why aren't the real people working there answering the questions?

Nick S.July 8, 2009 10:27 AM

"The Constitution provides no rights to visitors, only Citizens."


That's not true.

The constitution refers to the rights and privileges of "the people", not "the citizens", except regarding running for office and voting. "The people" isn't defined in the document- which generally means it covers everybody.

However, the constitution provides no "rights" anyway- merely the few privileges mentioned. The bill of rights enumerates some of the rights all people have that congress can not pass a law to take away, but it doesn't "give" them, other than to give them protection from the federal government.

Oddly, since it says that "the people" are free from search & seizure without probable cause, which I would think would apply to visitors as well. The courts have not agreed with me on that point.

http://www.usconstitution.net/const.html

KriedlerJuly 8, 2009 10:33 AM


"implied consent," which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket." -- B.S.

||||

"Implied Consent" is total nonsense, with absolutely no constitutional basis.

Freedom of movement & travel is the most fundamental definition of liberty & freedom. No government agent or airline employee has the slightest legal authority to force travelers to "consent" (directly nor indirectly) to a personal search... as a condition of travel, by any means.

- A legally 'unreasonable' search is where the government has no specific 'reason' (probable cause) to suspect a specific person of criminal activity -- but searches that person/property anyway. An 'unreasonable' search is a crime.

- "General" reasons for searching anyone-or-everyone ... like 'general crime-prevention' -OR-
'general anti-terrorism' efforts are PROHIBITED by the 4th Amendment. General or even 'random' searches are direct violations of Constitutional law... 200 years of American case law back that up. The LAW REQUIRES 'specific' legal reasons against specific persons/property.

Show me the "implied consent" clause in the 4th Amendment.

AnonymJuly 8, 2009 11:18 AM

Amazing that residents (of whatever country) needs a piece of paper to tell them not to be douches.

Bruce SchneierJuly 8, 2009 11:23 AM

"Amazing that residents (of whatever country) needs a piece of paper to tell them not to be douches."

"If men were angels, no government would be necessary." -- James Madison.

Those pieces of paper are part of a complex security system.

Bruce

CharlesJuly 8, 2009 11:38 AM

While I generally applaud the results of limiting abusive behavior by TSA, I think the TSA spokesman may have gotten it right -- the possession of false identification documents may very well be a security threat.

The solution would seem to have congress pass the required regulations to enable immigration enforcement by TSA -- if they don't already have that ability. BTW, is it actually illegal to have more than one passport? I thought I've heard of several situations where that is allowed.

However this should not be mistaken for the suspension of all rights to privacy. I also agree that more general permanent search points for random criminal behavior are at least as great threat to the citizens and non-citizens passing trough airports as the criminal behavior they are likely to prevent.

andyinsdcaJuly 8, 2009 11:45 AM

Everyone will be under suspicion now, with the suit that asks
"conducting suspicion-less pre-flight searches of passengers or their belongings for items other than weapons or explosives."

On the street, a cop just needs to "smell marijuana/alcohol/etc" and, poof, reasonable cause, whether or not either of those are actually present in the car/on your breath. What makes people think the TSA will behave any differently?

slakinJuly 8, 2009 11:56 AM

@Pfooti and bob - don't forget to avoid Texas in your cross-country drive to avoid the TSA. For every airport abuse like this, there a thousand local and state abuses. And often you will not be in the presence of hundreds of others, nor will everyone's actions be recorded electronically. Worse, some prosecutors are uglier than criminals, never mind local and state police.
These incidents are rare overall, and I for one am grateful for our laws and the professionals who enforce them. But if you yourself are ever caught in an ugly corrupt system this will mean nothing. For you, then, you might as well live in North Korea because you will be alone and without an advocate. Most cases like this don't make it into the news as this airport incident, where the public can become outraged and big shot politicians can chime in to get their approval. If you're REALLY alone when this happens, even public bystanders will not care and they will not help you.
Yeah, isn't it something we need the law to protect us from the enforcers. One of the biggest problems in the gov't since 9/11 and this goes a long way to explaining abuses, is the "us against them" attitude. Many officials now harbor the attitude that everyone is a criminal, just some haven't been caught yet. And only the gov't itself REALLY represents the nation, not those sinking civilians who don't work for the gov't and can't be trusted.

MarkHJuly 8, 2009 12:36 PM

@Thomas Jefferson (ha ha) who wrote, "The Constitution provides no rights to visitors, only Citizens."

Tom, you seem to have forgotten that in 1798, in a letter to A. H. Rowan, you wrote, "The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume."

And the right of Habeas Corpus is secured by the U.S. Constitution, Article I, Section 9.

And courts HAVE interpreted Habeas Corpus (among other rights) as applying to aliens.

Clive RobinsonJuly 8, 2009 12:39 PM

@ Charles,

"BTW, is it actually illegal to have more than one passport?"

The simple answer is it depends on where you are a citizen of, or if you have dual nationality.

For instance in the UK you are not supposed to have more than one passport or hold dual nationality.

However that changed with NI where a person born in NI may also hold an Irish passport.

As for multiple names no in most places that is not illegal, only using for a criminal activity is.

So Fred O'Conner born in NI, could move south of the border and get an Irish passport in his name. He could also return north change his name by deed poll and get a new British passport in that name.

All legal and above board.

If however he used one or the other whilst commiting a crime then under English law he would be convicted under that name if known (oddly you will be convicted in what ever name you use to identify yourself to the Police / court unless it can be shown otherwise which has got to be a loop hole if ever there was one...)

charlieJuly 8, 2009 12:50 PM

@badfish; um, actually, that is exactly the expansive reading of "implied consent" when applied to DUI cases. Try getting drunk in your driveway at some point. Don't be holding you car keys.

charlieJuly 8, 2009 12:51 PM

@charles; TSA doesn't have the right to check for false ID; they have the right to search for explosives and weapons. That's it.

anonJuly 8, 2009 1:18 PM

When the government fears the people that's liberty.

When the people fear the government that's tyranny.

Thomas Jefferson

NoneJuly 8, 2009 1:29 PM


Very few people noticed that it is not just flying means carrying "Real ID".

Try boarding an intercity bus, train, or for that matter, any mode of transport that is not strictly local without ID.

Have a look at what searches are being done at bus or train terminals.

About the only means of transport left that is not subject to these terms is to hitch hike or bum a ride from someone.

mooJuly 8, 2009 1:37 PM

@Larry: Wow, I listened to the whole recording. Those TSA goons are real idiots. They tried to bully him into answering their questions, about his employment, whether he was the owner of the money or whatever. Every time they ask him a question, he asks them "am I required by law to answer that question?" And they never once said Yes. Of course the real answer is probably "No", but I'm sure they didn't even know what questions they can and can't compel an answer to under the laws. So how they can expect citizens to know that, or even travellers from other nations who are just passing through, is beyond me.

Also, its just GREAT that they released him after half an hour of detainment and missing his plane, *as soon as they discovered political campaign materials in his possession*. They convince themselves that the money is "campaign contributions", but the real reason they let him go (obviously) is that they didn't want to pick on someone with political clout who could get them in trouble down the road. Shameful.

PackagedBlueJuly 8, 2009 2:59 PM

People who used to check in firearms at airports in the old days, went through TSA style crap, missed flights, etc.

Cash, what a dangerous weapon! 4700$ is such a powerful thing to TSA style thugs! You might even be able to bribe a pilot to crash a plane into a building with such an amount of inspiration!

Nevermind, even middle class women have diamond rings worth $5000.

Fancy that some upperclass women have 15K-25k for rings, and another minimum, 5K-15K of other items.

God forbid that an expensive Rolex is an item of corruption beyond any known dollar amount! To even consider other steath watches that cost far more, oh what suicide bombers those watches must be!

GeorgeJuly 8, 2009 3:23 PM

It will be interesting to see how the TSA's propaganda arm spins this case on the "Evolution of Security" blog. I gave up reading that blog because it upsets me too much, but I'd be interested in knowing whether they're ignoring the ruling or spinning it.

After two negative experiences with TSA screeners confiscating my belongings for (apparently) violating unpublished rules, I have decided not to fly any more. If I can't get there in my car, I won't go. I wish I also had the option of Amtrak, but the routes and schedules available to me are so limited, inconvenient, and reliable that it's all but useless.

Because "Security" is its middle name and it's ostensibly involved in fighting the "Global War On Terror," the TSA seems to enjoy a complete exemption from all constitutional and legal constraints that apply to other branches of government. Members of Congress dare not touch it for fear of being labeled "soft on terrorism." It operates as an unaccountable bureaucracy with a free rein to indulge its bureaucratic imperative to continually expand its authority into a generalized universal enforcement agency self-empowered to search, seize and detain anyone and anything it wants for any reason or for no reason. The only recourse we have is to "just say no" and not fly.

Clive RobinsonJuly 8, 2009 3:27 PM

@ PackagedBlue,

"Cash, what a dangerous weapon! 4700$ is such a powerful thing..."

In the UK carrying more than what a police officer considers reasonable could and has been used as grounds of suspicion, allowing detention pending enquires (so can the carrying of other valubles).

Apparently anything of value can be used to commit crimes such as buying wholesale quantities of illicit substances (Class A etc) or illicit objects (hand guns) or be the proceads of a crime (theft / black mail / protection / illicit gambaling)

Worst of all payment for work etc without VAT or avoiding paying duty (both of which fall under the old customs and excise remit and apparently you could be "lawfully killed" by "the revenue man" with impunity for offering resistance to their endevours...).

I'm not sure what happened after Customs and Excise where forced to amalgamate with the Inland Revenue after being found in court to have run an illegal money laudering scheme, but it's not something I'm keen to test...

Timmy303July 8, 2009 4:14 PM

Just read the order as published in the Fofana case, and there are some gems in there:

"The Government suggested in its initial briefing that opening the envelopes was reasonable because TSA needs to accurately identify passengers and, therefore, searching for evidence of a passenger's identity serves a security purpose. (Doc. No. 17, Mem.Contra.3.) The Government appears to have abandoned this novel argument in its post-suppression hearing briefs, which instead claim that opening the envelopes was necessary to detect weapons or explosives."

"According to Stroud, money is not a prohibited item 'but in large quantities it is suspicious.'(5/13/2009 Hr'g Tr. 58.) She testified that screeners were trained to notify a supervisor if they found a large amount of money, which she defined as $10,000 to $15,000. Stroud explained that she understood that carrying a large amount of money was suspicious because '[i]f it wasn't for an illegal or fraudulent purpose, then of course it would be in a bank or you could write a check or use your bank card.'(5/13/2009 Hr'g Tr. 58-59.) According to both Stroud and Mirow, the TSA's SOP encourages screeners to report discoveries of large amounts of cash to an appropriate law enforcement contact. (5/13/2009 Hr'g Tr. 24-26, 59.)"

"In other words, the need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable."

AnonymJuly 8, 2009 4:17 PM

Wrapping "suspicious" items in something related to politicians will let you through TSA like that?

TSA goon "Well, uhm..... we thought his friends pay my paycheck, so we let him go."

ringoJuly 8, 2009 4:34 PM

Went to St. Louis Arch this weekend, and was accosted by park guards twice: Once well before the security gates and once at the security gates where we were run through a metal detector and our belongings were sent through an x-ray machine.

The lady in front of me set off the detector, and she was assured that her shoes had metal in them and that she was okay to proceed. I, devoid of my camera, two phones, shoes, change, keys and hat set off the alarm. "Your phones set it off", I was told by a grizzled guard. After showing that my two phone holsters were empty, I was forced to remove my belt and both holsters before clearing the detector.

Dangerous WMD in the clips of my holsters, I guess. Meanwhile, the female potential shoe bomber got away without a second glance...Not only security theater, but inconsistently-applied theater.

ScaredJuly 8, 2009 4:45 PM

From the "TSA Secure Flight" folder:

Protecting the privacy of individuals’
information is a cornerstone of Secure Flight.
TSA guards the privacy of individuals by:
• Adhering to the letter and spirit of privacy law
• Treating individuals and their personal
privacy information with respect
• Ensuring a high standard of privacy protection
• Responding effectively to public concerns
TSA will collect the minimum amount of
personal information necessary to conduct effective watch list matching. Furthermore, personal data will be collected, used, distributed, stored, and disposed of in accordance with stringent guidelines and all applicable privacy laws and regulations.

mooJuly 8, 2009 4:58 PM

Another thought about the Bierfeldt interrogation...

The most worrying thing, is that they seem to think not wanting to comply with invasive and unnecessary procedures is some sort of evidence of guilt or shady behaviour. When confronted with any kind of resistance, even if the suspect is polite and reasonable, they still assume that person is some kind of criminal and proceed to treat them like one. This really needs to be changed.

Its like a bigger version of the door guardians at Walmart who want to check your receipt, with the two major differences being (1) the Walmart guys have no power to stop you, while the TSA guys can prevent you from taking your scheduled flight and thereby cost you hundreds or thousands of dollars, and (2) the Walmart guys are just company employees, not any sort of government or law enforcement representative, whereas the TSA guys are governed by statues and have some (limited) powers of search and seizure etc.

JonJuly 8, 2009 5:15 PM

@ Charles: ... the possession of false identification documents may very well be a security threat.

The possession of false ID presents absolutely *no* threat to the flight the person is about to board. Or any other flight, for that matter.

Adrian LopezJuly 8, 2009 5:52 PM

"The TSA should limit its searches to bombs and weapons and leave general policing to the police -- where we know courts and the Constitution still apply."

That strikes me as exactly right.

I thought the same when New York city officials started searching subway passengers as a matter of routine: They should be able to search for things like explosives, but anything else -- whether it's drugs or anything else that doesn't actually put other passengers at risk -- should be ignored unless they have a warrant to conduct a broader search.

B. RealJuly 8, 2009 7:05 PM

After finally having the opportunity to listen to the entire Bierfeldt clip the only thing I can say is that TSA staff (and the Air Cops they called in as "backup") are morons. Not just pushy, jack-boot wearing thugs, but genuinely stupid.

RobSJuly 8, 2009 7:40 PM

Got flamed last time so I will start with a disclaimer of believing the following :

(Professor?) James Reason theorised that we need to monitor the near misses in order to prevent the hits because there are lots more near misses than hits (swiss cheese theory ?). For the TSA, if they only look for weapons and don't find any, then we can't tell how effective they are. We can seed the input with stuff so that they can find it (or not) to give us a measure of effectiveness or we can let them find less rare stuff (evidence of criminal activity) and use that as motivation. Seeding is a good idea but it is difficult to make sure that the seeders are independent and as tricky as the real enemy. Therefore, allowing the TSA to look for "bad stuff" might be a good way to make them more effective/measure their effectiveness against the primary target.

Of course the constitution knowingly discards effectiveness in order to protect desirable freedoms so arguments such as the above are moot.

KJuly 8, 2009 9:42 PM

@Kriedler: "Freedom of movement & travel is the most fundamental definition of liberty & freedom"
I had this argument with someone who criticized my opinion that people who cover their faces due to their religious beliefs should be denied a driver's license if the driver's license rules require a photograph for identification purposes. No one's denying anyone's right to travel, just denying their choice of mode. No one took away their feet... As long as modes of travel (airlines, boats, trains, etc) are run by private companies, and the rules are applied equally across the spectrum, those companies (should) have a right to determine the criteria to use their services (IMNSHO).

HOWEVER - It's about time we see a ruling like this (even if the end result was sad given the obvious evidence which then became unusable.) I personally think the TSA has proven to be an incredibly inept organization, run so poorly and given such a wide latitude in their actions that it's become WORSE than a police state; at least a police state (typically) has a leadership, and isn't (again, typically, although there are many cases where it DOES happen) left to the devices of the lowest possible level of employee to decide what it within their purview, and what isn't. And those who've said your only choices are comply or miss your flight are on-target...and the TSA knows it. It's all about convenience; we choose the most convenient way to travel, and try to maximize our useful time. Want to have some fun with the TSA? Try showing up at the airport six hours early and don't comply with the security screener. Oh, wait, anyone showing up that early is probably a terrorist casing the joint...

SPARRAJuly 8, 2009 9:46 PM

This judge should be made to fly next to some Arab dude who is always smiling and chanting prayers to himself. When you go to an Airport in the USA and want to board a plane you should be checked out. If you went to a doctor and said you think your appendix was bad and the doctor looked you over and said your appendix was ok but failed to tell you you have cancer because you came in just asking about your appendix he would be sued. The next terrorist attack on or by a plane will carry some huge liability for the TSA and of course us the tax payers.
Yes I know the TSA are not the police, but maybe they should be part of Federal police agency, like the postal police.

dobJuly 8, 2009 11:05 PM

None: I had the opportunity to take a Greyhound bus ride last year. No ID check, no bag searches, no nothing. It was quite a pleasant way to travel, actually, but for the frequent stops.

dobJuly 8, 2009 11:08 PM

SPARRA: You're a real piece of work. Smiling, prayerful men of Arabian descent are much less a threat to our safety and liberty than fearful, racist douches like yourself.

csrsterJuly 9, 2009 1:35 AM

Clive, actually the UK has no problem with dual citizenship. See http://www.ukba.homeoffice.gov.uk/... .

By way of contrast, I live in Denmark where dual citizenship is not allowed except under exceptional circumstances. This is a "live" (but minor) issue for me as my kids are half-British, half-Danish.

qwertyuiopJuly 9, 2009 2:41 AM

@Kriedler

"Freedom of movement & travel is the most fundamental definition of liberty & freedom"

So explain to me why, in the "Land of the Free", for the last 40 years approx. you have been forbidden to travel to Cuba? I know the rules have been relaxed recently, but I understand it's still not as easy for you as a US citizen as it is for me a UK citizen.

CalumJuly 9, 2009 3:21 AM

As csrster notes, the UK is one of the countries that doesn't have an issue with you having as many other nationalities as you wish. I wonder how your Treaty of Rome rights interface with citizenship requirements?

A common reason to have two passports is frequent Middle East travel - many countries in that region will refuse you entry if your passport bears an Israeli visa stamp. In the UK at least, if you have a valid reason for requesting a second passport, you can get one.

Clive RobinsonJuly 9, 2009 3:21 AM

@ Nick S.,

"Oddly, since it says that "the people" are free from search & seizure without probable cause, which I would think would apply to visitors as well. The courts have not agreed with me on that point."

Not sure on which cases you are refering to as there appears to be a bit of confusion as to "air side" and "land side".

As far as I have seen the argument is that US law applies to US Citizens where ever they are, and also when they are in another juresdiction the law there applies to them as well unless there is a specific agreement otherwise.

However US law only applies to non US Citizens when they are "legaly inside" the US.

Therefor from the argument it follows that as a visitor you only have the rights international law provides when you are "air side", however once you are "land side" US law applies to a visitor.

The question I would like to see brought before a US court is if a visitor traveling within the US having gained legal entry to the US is treated as a "citizen" or an "alien".

Then of course there is the question of if TSA personel who break international law "air side" should be prosecuted and if so by whom and where and would the US Gov insist on extradition proceedings or just block the prosecution entirely.

Some of the powers the TSA have via the DHS are not just unclear some are gaurenteed to cause a conflict of interest.

Clive RobinsonJuly 9, 2009 4:58 AM

@ csrster,

"actually the UK has no problem with dual citizenship."

Yes and no, it is complicated by where you where born to whom and when.

Prior to 1949 it was a "no no", however since then if you where born in Scotland England or Wales (but not Channel islands or Isle of Manx) to people who are "setteled" then you might have got full nationality or citizenship however those who did and those who didnt changed with time (it is now the case of the parents being setteled or living legaly in UK for first ten years of your life).

If you where born in Channel Islands or Isle of Manx and have UK mainland associations then you may be a full citizen.

Prior to the Faulklands Act if you where born in the Faulkland islands then you where not a full UK Citizen...

Various changes since 2000 have effected other people in various parts of the world (EEA).

If however you are not a "full" citizen with "residency rights" then on taking up another nationality you lose your british citizenship/nationality.

The whole thing keeps changing every few years due to one thing or another, ie some friends of mine woke up one morning to find that they now had full British Citizenship and travel to Europe was nolonger an issue due to the Faluklands Islands act.

The whole British Citizenship business is a mess due to the old "British Empire" countries (now Commen wealth) and protectorates and laterly EU/EEA legislation.

You can get a taste of it at,

http://en.wikipedia.org/wiki/...

ytJuly 9, 2009 5:51 AM

@tim

"The procedures at the airport are idiotic but really no less intrusive than they were before 9/11 (at least the agents speak english now)."

I've done a lot of flying both before and after 9/11. In my personal experience, here are some things that have changed during the last 8 years:

1. You did not have to take off your shoes and put them through the x-ray machine. (This is far from universal. In a lot of European cities, I have not had to remove my shoes.)

2. There was no limit on liquids. You did not have to put them in a zipper bag, and you did not have to take that bag out of your carry-on luggage to go through the x-ray machine.

Number 1 and 2 are probably responsible for the biggest delays in getting through security - taking shoes off and putting them back on takes time, as does unpacking and repacking your bag.

3. Non-passengers used to be able to come through security (at least in US airports. In a lot of European airports, non-passengers haven't been able to do this for a long time, and the airport has been designed to accommodate that). This meant that loved ones could accompany you to the gate or to the in-airport mall.

I'm sure there are others, but those are the only ones that come to mind right now.

qwertyuiopJuly 9, 2009 5:53 AM

@Clive Robinson 4:58

And just to confuse the issue further, some of us are British *Subjects* not British *Citizens* - a point of some considerable irritation to an anti-monarchist like me!

bobJuly 9, 2009 7:32 AM

@tim: Unfamiliar with police state? Disagree. My grandmother was from Kaliningrad. Most of my family lived within 40km of the Iron Curtain (luckily on THIS side). I have traveled in DDR and talked with citizens there. If all that fails I also can read (stipulated that as my eyes get on I am not the voracious reader I once was)

It is not my lack of familiarity with police states, but rather the opposite which causes me to try to reverse their development here.

The police per se [regardless of which of the 500+ variation the US has - its getting to where TLAs arent enough, we will need to upgrade to FLAs] are an arm of the government and as such work for the citizens, not the other way around.

I also believe most people disagree that airport security post-9.11 is not worse than pre-.

BF SkinnerJuly 9, 2009 9:49 AM

In more innocent days (during the first trade center bombing) there was a brief kerflullfle because some criminals out ran the police by using the Brooklyn Tunnel.

"HOW COME," said the loud mouths "HOW COME I HAVE TO STOP AND PAY MONEY BUT THOSE PEOPLE AT THE TOLL BOOTHS CAN'T STOP A FLEEING FUGITIVE"

(criminals are obvious. they are the ones that are running.)

The Transit authority said "We aren't running checkpoint Charlie on the end points of these tunnels and bridges."

Seems analogous to TSA. If they kill the reason for their existence why bother. I don't fly any more for the same reasons others have cited in this blog.

We were ASSSURED that TSA was there to ensure safety. But as most here realized as soon as give an agency a power it grows.

People say "Well they are already searching people. Criminals use airlines. Lets use them to detect criminal behavior. Cut samples of their hair for drug tests. Examine the data devices for porn that may be obscenity within the bounds of the Miller test. etc"

I think I started hearing this within a week of TSA's stand up?

American's have a tough time with freedom. They want it for themselves but don't trust their neighbors to be able to handle it. (well me either I KNOW my neighbor.)

Matt from CTJuly 9, 2009 9:55 AM

>So explain to me why, in the "Land of
>the Free", for the last 40 years approx.
>you have been forbidden to travel to
>Cuba?

Partly it depends if you feel it's a meaningful economic sanction that kept Castro from developing a casino based economy...

Or if it's just an ineffective diplomatic temper tantrum.

Because our, like most nations, foreign policy is carried out like we are still led by a bunch of 19th Century in-bred European monarchs whose feelings were hurt if they were slighted by someone.

That's been institutionalized into an entire diplomatic corps that seems to believe sulking, threatening to leave, and such nonsense actually should influence policy.

>The question I would like to see
>brought before a US court is if a visitor
>traveling within the US having gained
>legal entry to the US is treated as
>a "citizen" or an "alien".

You are an alien. As others explained, you have nearly the same legal rights as a citizen (since you are "people"), however your permission to be in the country can be revoked fairly easily and be escorted to outside the national boundaries.

FPJuly 9, 2009 10:05 AM

As for the "implied consent" ... see, e.g., American Airlines Conditions of Carriage: https://www.aa.com/aa/i18nForward.do?p=/customerService/customerCommitment/conditionsOfCarriage.jsp

"American may refuse to transport you, or may remove you from your flight at any point, for one or several reasons, including but not limited to the following:

"3. Refusal to permit a search of person or property for explosives or for deadly, controlled, or dangerous weapons, articles or substances.

"4. Refusal to produce positive identification upon request."

So yes, you imply consent when you purchase your ticket. Not because of any federal rules, but because of the contract you agree to with the airline.

Of course, in a free market, you can choose to fly with an airline that offers a better deal. If you can't find one but believe that there is sufficient customer demand, you can start your own airline.

GeorgeJuly 9, 2009 12:01 PM

I think RobS has it right. Because actual terrorists are very few and far between, the TSA has very limited opportunity to demonstrate effectivess at their "mission." So they have to use "surrogate measures" to show (by implication) that they're working round the clock every day to provide effective protection from terrorists.

So the detection of drugs, cash, pornography, or any other "contraband" outside the TSA's mission qualifies as "success" because it's (implied) proof of their ability to catch explosives or materials within their mission. Behavior detection officers who spot people with fake military jackets also qualify as "success" because it (implicitly) proves their ability to spot a terrorist. And crowing loudly about a full-body scanner finding an oversized bottle of lotion should conclusively overcome all objections about privacy and "strip searches" by (implicitly) proving that the scanner provides highly effective protection against terrorists carrying dangerous items.

This isn't "mission creep," but merely continuing proof that the TSA's procedures for keeping us safe are effective because they continually produce reported results. It shouldn't matter that these "results" have nothing to do with threats to aviation. And besides, is anyone really going to seriously suggest that government officials who find drugs, cash, pornography, fake IDs, or anything illegal, immoral, or fattening while screening air travelers for explosives or weapons should just let them go because it's "outside their mission"? Any member of Congress who says that in public is surely "soft on crime," and deserves to be defeated in the next election!

The real reason all this implied proof is necessary is that the alternative "seeding" tests conducted by undercover auditors have consistently shown that screeners fail miserably at detecting simulated weapons and explosives, and have shown no significant improvement over the years. So the TSA presumably hopes to bury those adverse findings with a steady stream of what anywhere else would be called false positives or failures.

It's about time that someone independent (i.e., the judicial branch) starts imposing some long-overdue oversight and constraint on the TSA.

dobJuly 9, 2009 12:32 PM

FP: The airline market is far from a free one. Most obviously, there is considerable government regulation of the airline industry, but aside from that, there are significant barriers to entry, particularly the cost of the airplanes and the airport terminal rental arrangements.

Ben in AZJuly 9, 2009 4:18 PM

Respectfully, and though I am no expert, one glaring issue is present in the assumptions made by some in these comments (Robs, George), namely that TSA and similar staff should be on the lookout for contraband since it by extension proves they can find weapons or explosives.

Since it takes time and training spent looking for "contraband" not germane to protecting travelers, then that means there is time and training *not* spent working toward the real mission, protecting travelers. More drug dogs means fewer explosives dogs. Training screeners to find anything other than weapons and explosives means that much less training on screening for weapons and explosives.

I really don't care of "Joe Pothead" is headed to Ohio visit his parents from Caly or if an attorney or whoever has a few thousand in cash on him or her. What I want to know is that if someone is planning an attack on a plane or a subway station that the folks meant to prevent that are able to and actually are doing what it takes to prevent *that* outcome.

Ben in AZJuly 9, 2009 4:30 PM

PS: I should add of course that if contraband *is* encountered and that it is obvious that the screeners came across it in due course of fulling the mission (stumbles across something), well then so be it. "Joe P." will just have to be majorly bummed out during the trip home, if not arrested and thus prevented from traveling altogether...

Still (as to the OP), large amounts of cash does not in itself constitute a crime. Fake passports (forgery) does I'd think, but then still depends on how a screener went about finding them (details of the case not-withstanding). I don't want screeners screening for everything they can possibly turn up, I want them to protect travelers.

GeorgeJuly 9, 2009 6:36 PM

Ben in AZ, to clarify my comment I actually do question whether these "surrogates" are in any way valid. We're supposed to accept on faith the TSA's assertions that their well-documented ability to find contraband outside their "mission" proves that they can effectively protect aircraft from terrorists. But is there any valid basis for for believing that?

I'll agree that the attention screeners devote to operating a general dragnet most likely detracts from their supposed focus on explosives and terrorism. And that's entirely separate from the matter of whether the TSA has any authority (whether legal or through "implied consent") to subject all airline passengers to arbitrary search, interrogation, seizure, and arrest at the whim of individual screeners under color of secret regulations, without the limits and constraints that apply to other law enforcement agencies.

The only objective, impartial review (in the form of undercover testing) suggests that the TSA consistently fails at their mission of detecting materials that threaten aircraft. But rather than improving their procedures and training to correct the deficiencies and meet their mission, they've chosen to expand their authority in the hope of burying the adverse findings in a continuous flood of "heroic" drug busts while eliminating liberties and constraints they consider inconvenient. So we're getting "mission creep" and continually increasingly intrusive and difficult Security Theater at checkpoints, even as they consistently fail to improve their dismal performance of their stated mission. That's the real problem with the TSA.

hwKeitelJuly 10, 2009 4:16 AM

@bruce: "The TSA should limit its searches to bombs and weapons and leave general policing to the police -- where we know courts and the Constitution still apply."

i don't agree. TSA should serach for weapons, bombs, drugs, money ...
every kind of smuggled goods.

of course police should do police work!

BF SkinnerJuly 10, 2009 6:38 AM

@ Ben

But you should care Ben! ALL people who engage in criminal acts are EVILDOERS. EVILDOERS is a all or nothing category. Therefore a kid carry grass to his grandma in Ohio is as evil as any terrorist. And ANY cost is worth the prevention of the loss of ONE life (especially if it can be said to be a child).

This is single/two value thinking at it's worst.

I hear it in my hometown newspaper all the time. WHY, whine the uncertain, are these criminals allowed outside of prision? (ever?).

JustinJuly 10, 2009 7:30 AM

@hwKeitel

You are either a troll, or don't understand that the TSA are not Police.

Nick BJuly 10, 2009 8:31 AM

@RobS
We know exactly how "effective" the TSA is: totally ineffective. At their current tested detection rates they would not have prevented 9/11. What more could there be to know?

FPJuly 10, 2009 10:15 AM

@hwKeitel: That's the job of Bureau of Customs and Border Protection (CBP), and it only applies to people (US citizens and aliens alike) and goods crossing borders.

There are privacy issues with CBP searches too, notably their claimed authority to inspect data (laptops, memory sticks, etc.), but that's the subject of other posts.

hwKeitelJuly 11, 2009 5:58 AM

*irony*
there should be three checks points and everyone would be happy;)
1. airport security (at the entrance)
2. police
3. border protection
(4. and air force)
platform tickets improve security.

i think airport security is overrated, it is just another way to frighten people!

oliverJuly 12, 2009 3:37 AM

Does anyone in the USofA really still believes that the TSA serves any purpose at all?
This is, as Bruce has pointed out in here repeatedly, just the worst example of CYA security theater.

SelecteeJuly 12, 2009 4:26 PM

Both cases are steps in the right direction. Eventually TSA will be whittled down to its proper (negligible) size.

WiskersInMenoJuly 15, 2009 12:01 PM

My issue with the TSA and many other enforcement agencies is that they are almost free of audit and oversight. For example if the TSA confiscates anything you do not get a receipt (no due process).

If you are detained there is no record and I would bet a coffee that any iPhone is now viewed as a problem any time the TSA visits with you in private.

It is interesting that cell phone videos are now exposing some serious transgressions by law enforcement yet I was advised by a flight attendant to put my phone away while hung out for hours pushed off three feet from the gate to score departure on time points. I was in fact searching for enough 'bars' to call home and let them know I would be late. It might look like I was using the camera... I am far sighted.

Back to Steven Bierfeldt's situation. Had he not recorded the interaction there would be no record and I would assert that the TSA should keep records.

I do know of one TSA .vs. citizen confrontation where a TSA employee manhandled a skinny guy only to discover that he was twice as strong as the TSA dude was and the result was that the TSA dude made a resisting bla bla claim. It degraded to a he said .vs. he said contest. Most interesting a subpoena of the video record (there were cameras) came back that the cameras were not on or the tape was lost.... ;-(

Since most of the TSA actions are by regulation and policy not law there will be more challenges....

SammyNYCJuly 15, 2009 9:20 PM

Many that have said that TSA should stick to their mission of searching for bombs and weapons sound ridiculous. How can you say that if someone has a fake Id he should be let go? It sounds very stupid that you would think like that. Why would someone have a fake Id if they aren't hiding anything? Those with fake Id's might be sex offenders, killers or wanted for whatever reason. If TSA finds someone like that shouldn't you be happy that another criminal was caught. I sure don't want them sitting next to me. Who knows, TSA might have saved that predators next victim. TSA might not have the right to arrest someone but they can call the police to handle the situation. Many complain about TSA but don't say anything about police brutality and many other things that happen in the world. I have seen TSA deal with passengers who act out of line for no reason. Just last week, one passenger was intoxicated and was acting very foolish yelling and pushing people. Should TSA have let that person fly or let go because its not part of their mission? Come to find out that person was suppose to be on the same flight as I.

Clive RobinsonJuly 15, 2009 10:37 PM

@ SammyNYC,

"How can you say that if someone has a fake Id he should be let go?"

It is not the point that is at issue.

The point that is at issue is that the TSA have been given a very specific job to do.

In none of the publicly available documentation about the TSA's mission that people have seen has there been formal permission for them to behave in the way they do.

In the US you have laws to protect the individual from undue "authoritarian behaviour" by those given the task of maintaining public order (the Police etc) by the state.

One such law was put in place that any evidence found by an illegal search by those maintaining public order could not be used against the individual.

What is being discussed on this blog is not the rights or wrongs of the individual but the rights and wrongs of the TSA within the public remit they have been given.

If you look again at the top of the post you will see that there is a case of an individual possibly doing wrong and an individual possibly doing right given. What is not given because it is unknown is a list of all the TSA searches that fall outside of their publicly published remit.

The law has many apparent oddities for instance in many parts of the world it is not illegal to carry "fake goods" but only to use them. There are many good reasons why it should be so but that is not the topic of this particular page.

So odd as some of the posters on the page might appear it is because they have chosen to limit themselves to the discussion of the possable wrongs or rights of the TSA within their publicaly known remit and how they are being used to extend the abilities of those given responsability for maintaining public order to alow un warranted (as in without a warrant) searches of peoples possesions on a mass scale.

makkyAugust 6, 2009 8:22 PM

I find the judge who threw out the passports to be incorrect in his logic. If TSO's had x-ray vision and could see through the white envelope when conducting the bag search, then there would be no reason to open the envelope. But since this is the real world and not a superman comic, how else can you tell whats in there? Maybe some C4 or some PETN perhaps? I wouldn't be able to tell.

Secondly, it is completely ABSURD to think that there is any motivation at all in finding "ordinary criminals." There is motivation for TSO's to get a paycheck, find the "bad things" when they are being tested and otherwise, and to live life like andbody else does. It's so weird how people paint a picture of these TSO's being no life morons that get off on finding some fake passports... WOO HOO WE GONNA PARTY TONIGHT MAMA! Give me a break.

And another thing I don't get, should TSA just turn it's head when they discover illegal things? Thats what everyone seems to be implying. If it's not a bomb--- it's not our business! Ya, okay. What about child porn? Shall we just "mind our own business" and let the sicko get on the plane and sit next to you and your 3 year old kid. After all, he won't be blowing up a plane with his child porn now will he?

Yea. Think about that one.

AnonSeptember 1, 2009 3:15 PM

TSA is not a law enforcement agency. Until they enforce laws, they are not and never were a law enforcement agency. They are subject to DHS Inspector General just like all of the DHS agencies, therefore invesitgatable from within their Department. They have no acernable form of Internal Affairs.

A U.S. Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.” Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers. It relates directly to the USA's right to protect its sovreignty and commerce. This has been upheld by the Supreme Court since U.S. Customs was founded in 1789 (a Constitutionally manadated Agency, BTW).

Rachel, UKNovember 18, 2010 3:14 PM

You stay free and brave now, America!

Never in the field of human rights, have so many liberties been taken and abuses perpetrated, by so few goons, and so many passive sheep that sit by dumbly and allow themselves to be subjugated. Still, your president got a Nobel Prize for Honourable Intentions And Not Being George Bush recently, so that's alright then - molest away; as long as it's in the name of freedom and patrotism it's all OK! :)

Angie BSeptember 6, 2013 6:44 PM

I work at an international airport- at a restaurant inside the airport. Everyday I have to go through TSA. I have worked at the airport for many years and I am very well-liked by my restaurant, other restaurants there and by certain TSA agents who know me. Lately, TSA has incorporated "random searches". When people walk through the scanner one is chosen "randomly" every so often... this includes people who work at the airport.


Today, I had a verbal altercation with TSA because they "chose" me to "randomly" search. I objected on the grounds they were violating my Constitutional Rights to travel freely unmolested, to provide a living for my family- life, liberty and pursuit of happiness and search and seizure. I carry a "Freeman's Writ of Right to Travel" with me all the time. I also carry an "Affidavit of Reservation of Rights", which clearly STATES anyone who violates my rights will be charged a violation fee of my liberty in the amount of $250,000 per incident. I showed that to them, and the TSA manager, Greg, said he didn't have to read my "paper". I also told them verbally I reserved all of my rights under UCC 1-308 and I did not enter into any verbal, imaginary, assumed, or silent contract with them, and that they could be sued under that law. It did not matter. The TSA refused to let me into the airport to work and are trying to have my badge revoked, which means I will be fired without reason.

I have been told I need to file a "Notice of Injury" and "Violation of Human Rights" on them and I plan to do so.

I have left a message for a Civil attorney today and hope to speak to him soon. I am also planning to send each individual involved (as I wrote down names and titles) a Commercial Affidavit and a Notice and Demand that they have violated my Constitutional Rights.

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