Apr 20 2009

TSA claims new powers of detention, search, and interrogation

Once again as before trying to legislate by press release and blog posting, the TSA has asserted that it has the general law-enforcement authority to detain would-be airline passengers, seize their possessions, and compel them to answer questions — for reasons entirely unrelated to aviation or security, and even when it cannot articulate any probable cause for a belief that any law has been violated.

These new assertions come in response to an incident in which a passenger attempted to bring a locked metal cash box as part of their carry-on baggage on a domestic flight.  Since the box was opaque to x-rays, the TSA staff at the checkpoint at Lambert Airport in St. Louis asked the traveler to open the box so that they could check whether it contained any prohibited or dangerous items, and took him into a private room to do so.

So far, OK. Commenters in the TSA blog, including jewel dealers, point out that many types of valuables must be carried on (because they are exempt from airline liability if placed in checked baggage) and that they don’t want them inspected in public, where other people might learn what they are carrying.

In the back room, the traveler unlocked the box, and the TSA agents verified that it contained only cash (approximately $4,700), checks, and other documents.  No weapons or explosives, and nothing even arguably prohibited, dangerous, contraband, or illegal.  That should have been the end of the screening. Instead of letting the traveler go on through the checkpoint, however, the TSA then called the local police. It’s unclear if the TSA actually detained the traveler or kept custody of his cash box and its contents while waiting for the police, or if he could have left the airport (with or without his money and checks) before the police arrived, but it’s clear that they wouldn’t have allowed him to continue past the checkpoint to his flight.

Once the police arrived, the police and the TSA together informed the traveler that he was under detention and not free to leave, and interrogated the traveler about his employment, the reasons for his trip to St. Louis, the ownership and source of the money and checks (which in fact were the proceeds from a political event, which thus contained information protected by the First Amendment about acts of assembly and association by the writers of the checks), and other issues unquestionably unrelated to weapons, explosives, or aviation security.

The traveler responded to each of these questions, calmly and politely, by asking, “Am I required by law to answer that question?”  None of the TSA staff or police would answer this question, nor have they subsequently done so.  Instead, they told him that possession of cash and failing to answer their questions was “suspicious”, and threatened to keep him under detention and “take him downtown” to be questioned further by the Drug Enforcement Administration (DEA).

After about 25 minutes, and after some conversation out of his hearing between the agents and an unidentified person in plain clothes, the traveler was told he was free to go.  He made his plane, with his cash box and its contents.

We know all this because the traveler, Steve Bierfeldt, covertly recorded all but the start of the incident on his iPhone. There’s more about the incident, including interviews with Mr. Bierfeldt, in these reports from Fox News and the Washington Times.  And in case you are wondering, the incident occurred in Missouri, where the law permits any party to a converstion to record it, even without the knowledge or consent of the other party or parties.

But the worst thing isn’t what the TSA did, but what it has subsequently claimed it has the right to do, and to compel would-be travelers to do.  According to the TSA blog:

Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected. As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.

In effect, the TSA is now claiming that they have general authority to:

  1. Conduct searches not limited to a search for weapons, explosives, or dangerous items .  (This is implicit in the failure to desist from the search once it had been confirmed that the cash box contained only cash, checks, and documents, not weapons, explosives, or any items that could conceivably pose any danger to aviation.)
  2. Detain would-be travelers, and/or prevent them from proceeding through checkpoints, even in the absence of any evidence whatsoever of a danger to aviation.
  3. Compel travelers, as a condition of passage through the TSA checkpoint and travel by common carrier, to answer questions, apparently without limit and including questions clearly unrelated to aviation security.

Carrying cash in any amount, we should say from the start, is entirely legal.  There is a Federal law against carrying (1) more than $10,000 (the police and/or TSA continued to detain Mr. Bierfeldt after counting the $4700 in his possession) (2) across the US border in or out of the country (Mr. Bierfeldt had a boarding pass for, and was attempting to board, a domestic flight), (3) without having declared it on a specified form to the Department of the Treasury (which the TSA and police had no way to know if Mr. Bierfeldt had done, didn’t ask him about, and gave no indication that they had tried to find out). In any event, this law is not policed or enforced by the DEA or the TSA.

What about the TSA’s claim that “As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions”? In fact, there is no such “rule” in any publicly-disclosed law or regulation, nor any other law or regulation that gives the TSA general authority, at checkpoints or anywhere else, for warrentless search, detention, or compelled response to interrogation.

With respect to searches and denial of transportation, Federal law at 49 USC 44902(a) allows an airline to refuse to transport:

(1) a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or (2) property of a passenger who does not consent to a search of the property establishing whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance.

In addition, 49 USC 44902(b) authorizes the denial of transportation to anyone or anything “inimical to safety”.

Nothing in either of these sections purports to grant any authority for search, to require consent for search, or to authorize denial of tranportation, except on the basis of safety.  There is simply no question that even if — in their incompetence — the TSA agents who called in the police had an erroneous but good-faith belief that there was any law against carrying cash, that had noting to do with safety.  At that moment, they had no authority to detain the traveler or prevent him from continuing through the checkpoint or boarding his flight.

TSA arrest authority derives from 49 USC 44903(d)(2):

[The] Secretary of Transportation may authorize an individual who carries out air transportation security duties– (2) to make arrests without warrant for an offense against the United States committed in the presence of the individual or for a felony under the laws of the United States, if the individual reasonably believes the individual to be arrested has committed or is committing a felony.

(Under the laws creating the TSA and DHS, this and other portions of the authority of the DOT and the Secretary of Transportation were transferred to the TSA, DHS, and the Secretary of Homeland Security.)

Under this section of law, TSA agents only have the authority to detain a traveler if they reasonably believe that the person either has committed a Federal crime in their presence, or has committed or is committing a Federal felony.

For the TSA to claim — as they now have — that the detention was justified, implies that they think (1) that mere possession of $4700 in cash, coupled with the exercise of the Fifth Amendment right to remain silent, actually led the TSA agent(s) who called the police to believe that Mr. Bierfeldt had committed a Federal felony, or was committing a Federal crime in their presence, and (2)  that such a mistaken belief was nevertheless, depite its falsehood, objectively reasonable.

It’s conceivable, although unlikely, that the agent(s) had such a belief.  But such a flagrantly erroneous belief, on the part of TSA officers, about what possessions are legal, and about the right to remain silent and the inferences which may permissably be made from the exercise of that right, cannot and should not be considered “reasonable”.

As for TSA authority to compel responses to interrogatories, Federal regulations at 49 CFR 1540.107 require that “No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property.”  But “submitting” is a purely passive act, and the language clearly implies that screening is a physical act applied to objects (“person and accessible property”). It would be a strained reading of this regulation, and one that extends it beyond its statutory authority, to read mere “submisison” as including an affirmative obligation to respond to interrogatories.

49 CFR 1540.109 sets penalties for “interfering” with screening personnel.  But it would be equally strained (and equally without statutory authority or Constitutionality) to define the exercise of the Fifth Amendment right to remain silent as “interference” subject to legal sanctions, especially if the purported basis for the interrogation was a suspicion of criminal activity.

In issuing this regulation, the TSA specifically stated (67 FR 8344, February 22, 2002) that, “This rule does not prevent good-faith questions from indivuduals seeking to understand the screening of their persons or their property.”  Mr. Bierfeldt repeatedly told the officers detaining and interrogating him that he “didn’t understand the law” and was seeking their help in understanding whether he was legally obligated to answer their questions.

In upholding this regulation against a First Amendment challenge in 2005, the 6th Circuit Court of Appeals in its decision in Rendon v. TSA (424 F.3d 475) relied on this statement accompanying the issuance of the regulations, and on the fact that the traveler in that case, unlike Mr. Bierfeldt, had not confined himself to such questioning but had also engaged in “disruptive” shouting of expletives.

The issue of TSA interrogations has been an issue since the TSA began its SPOT program, and this isn’t the first time travelers have been required to answer questions from the TSA and/or police (unrelated to weapons, explosives, or prohibited items) before the TSA would allow them to exercise their right to travel.

To date, courts reviewing TSA actions have assumed that TSA searches were limited to searches for weapons, explosives, or other threats to avaition security.  Most recently, for example, the 9th Circuit Court of Appeals ruled in 2007, en banc, that “the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ] [and] that it is confined in good faith to that purpose.'” (USA v. Aukai, quoting US v. Davis, 9th Cir. 1973, 482 F.2d at 913). We are unaware of any case law on the obligation to respond to TSA interrogation (or police or third-party interrogation) as a condition of passage through a TSA checkpoint.

We encourage those subjected to these new assertions of broader TSA authority to stand up for their rights.

36 thoughts on “TSA claims new powers of detention, search, and interrogation

  1. A wonderful, well written dissection. Thank you.

    On a tangential note, our family will avoid flying through the US at any cost. If the final destination is in the US then the next consideration is whether or not driving is feasible since Customs and Border Patrol are still far less trigger happy with their questions and tactics (as compared to the TSA.)

    It seems, unfortunately, that the new boss is the same as the old boss; I’m not referring simply to the TSA but other issues including warrant-less wiretapping, and dealing with the raft of Bush-era positions from the Justice and State Department – not to mention the hiring of MPAA and RIAA counsel for positions in the executive branch. But ultimately, I should save that part of the comment for another essay.

  2. I’d like to know when there are going to be court appearances from die-hards (Like Bierfeldt!) who are willing to challenge this sort of thing. I am 100% with papersplease.org, and have long appreciated Gilmore’s efforts to fund pro-freedom initiatives. I look forward to the day when I will be able to do the same. But, to quote Harry Dean Stanton’s character in “Repo Man” “…If there was just some way of making the bastards pay!”

    What can I physically do to prevent people who dare to stand up to these laws from being punished? If there are ever any court cases that need a http://www.FIJA.org activist to inform the jury of their right to acquit, please, let me know.

    I think what Bierstadt did, as far as recording the insanity was very, very intelligent. Everyone should carry recording devices at all times.

    In fact, it would probably help lower-level activists like myself out if you guys published the laws that allow recording in all states. Since there is no law any longer, it might be useful in waging a media war against the federal goons. (Since you mentioned that the recording was allowed in MO, this implies that there are states where they might have tried to punish Bierstadt. If they had, then there would be a situation which calls for FIJA activism, and jury-education. After all, we all have a right to record people whose salaries we are paying, for the purposes of crime prevention. The violation of rights is a vastly more severe offense than stealing $5 out of the cash register at a McDonald’s. So why is it that the cops won’t respect your rights to travel with money or private property, but they will respond to a complaint of petty theft?)…

    …Maybe because they view us all as literal slaves, to be mulcted or stolen from at will.

  3. Jake — A good state-by-state (and DC) guide to laws on audio recording of telephone calls and in-person conversations, prepared for the use of journalists interested in recroding interviews, is available form the Reporters’ Committee for Freedom of the Press at:


    This includes citations to both statutes and cases. However, it focuses on “private” conversations.
    Recording of conversations with police, without their knowledge and/or consent, may be legal even in *some* jurisdictions where recording generally requires the consent of all parties to the conversation, depending on the statutes and case law in the jurisdiction, and the circumstances in which police are deemed to have a reasonable expectation of privacy in their conversations with targets of police encounters. On the other hand, there are special statutes which attempt to restrict photographing of police in some jurisdictions, although these don’t usually attempt to restrict audio recording. There is a growing body of experience and case law specifically related to recording of police activity by members of the public and “citizen journalists”. If you are unsure, seek local legal advice before recording.

  4. You forgot the part where the TSA agent rudely said “….but you want to play smart-A**, and I’m not going to play your f***ing game.” The foul language is the only thing that TSA seems to regret about the incident.

  5. @Terry,

    I should have been more explicit that here along the Montreal/New York and Montreal/Vermont borders, they have been quite “human” and thus a more acceptable point of entry in my own opinion.

    But I believe if we decided to get into single-case specific arguments, we can dig up just about any position of power and find someone, or some group, who have abused that power.

    My general feeling though, is that the culture of the TSA is reflective of a much more broad and consistent assault on the general population it serves and as such garners the intense criticism it deserves.

  6. Unfortunately the past eight years have shown there are no consequences for this type of behavior by official representatives. Rights, knowledge of rights, respect of rights – these are irrelevant. The highest officials in government have publicly stated they have broken the law multiple times, but they have not been indicted, interrogated, deposed or even threatened with legal action. Why should we expect any public employee in any role to consider their power limited by relative concepts such as laws and regulations.

    The legal analysis above is great but useful only in a court governed by the rule of law (it certainly wouldn’t have made an impact on the legal scholars on the recording….). It’s still questionable whether the US still falls in that category.

  7. BTW, I can’t address everyplace, but even in California, which is a “two-party consent” state, that only applies to situations which would be private or confidential.
    So, even here, you could legally record anything that happens in public. So, for example, if I were in SFO and the TSA found an amount of cash and asked me about it (I have carried large amounts of cash in plastic bags), recording the interaction would be fine if I were in a public place.

    So, the next question is, can TSA force me to a private location?

    BTW, there were incidents in the southeastern US when people driving were stopped, apparently for “driving while Black or Latino” and large amounts of cash was confiscated. It’s been a while since I heard about this, or what eventually happened, but do recall it clearly, since I happen to know well one area where it was happening.

  8. My Russian wife was returning from Ukraine after finishing her doctorates in biology and genetics. She arrived at New York Airport. There was a huge storm and her flight was delayed. Her baggage went on without her. They asked her why did she change her flight, it was a forced change, not of her choice. due to weather. DUH??? Since this could be a terrorist plot, the TSA felt her up for no reason, I think the TSA woman was possibly a gay. This was abuse of authority under color of her job.

  9. Re immediate previous comment by David Harvey — Please. What would being gay have to do with anything described here? This is bigotry.

  10. One important ommision above has been the reference to US forfeiture laws. The US Govt can will confiscate the money (any amount), even below $10K if it believes the money has been obtained or used illegally. You will then have to petition the US Treasury to maybe get it returned to you and perhaps even a penalty. The proceeds will go to purchase police training aids like stun guns. Remember, “Get out out of America while you still can and don’t walk- RUN”.

  11. Kate: With regard to the previous poster’s comment, I believe what he was trying to say was that the TSA agent intentionally performed an invasive “pat-down” for the sexual thrill, and not because of any legitimate security interest. It was not worded very well, but I don’t think he was bigoted in intent.

    On the otherhand, those that mail order brides from Russia might not also be the most enlightened of people. (Apparently, SMART Russian mail order brides are available! Get ’em while they’re hot!)

    David: She’s going to dump you anyway, so don’t get too worked up…

  12. Pingback: Papers, Please! » Blog Archive » Add your name to the campaign against TSA “Virtual Strip Searches”

  13. You forgot the part where the TSA agent rudely said “….but you want to play smart-A**, and I’m not going to play your f***ing game.” The foul language is the only thing that TSA seems to regret about the incident.

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  18. Good article, however I disagree with it.

    Fact #1: there is a rule of visibility: anything law enforcement officer can see, can be used as evidence, even if this is irrelevant to the reason he stopped you. For example, if the officer makes a traffic stop and through the window of your car sees packet with drugs, he will arrest you. In this case, TSA during security screening have discovered large sum of cash (by their definition).

    Fact #2:

    Eighth Circuit Appeals Court ruling says police may seize cash from motorists even in the absence of any evidence that a crime has been committed.

    US Court of Appeals, Eighth Circuit federal appeals court ruled yesterday that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, “United States of America v. $124,700 in U.S. Currency,” the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a “lack of significant criminal history” neither accused nor convicted of any crime.

    Yesterday the Eighth Circuit summarily dismissed Gonzolez’s story. It overturned a lower court ruling that had found no evidence of drug activity, stating, “We respectfully disagree and reach a different conclusion… Possession of a large sum of cash is ’strong evidence’ of a connection to drug activity.”

    Basing on this precedent, TSA’s discovery of the cash is strong evidence of a connection to drug activity. Yes, it has nothing to do with airline security, but because of the rule of visibility, this ’strong evidence’ they have found is more than sufficient reason for the arrest, interrogation, and ceasing the cash.

    However unreasonable this “strong evidence” appears to 99.9% of people (I hope), it is indeed real law precedent upheld by high court, so it can’t be easily dismissed. TSA was acting 100% legally, and their intent to pass the case to DEA was 100% legally valid.

  19. Pingback: Papers, Please! » Blog Archive » Courts and Congress finally start to rein in the TSA

  20. I bumped into your site while surfing to find law firms that will represent my wife on a TSA employee’s abuse committed against her while going through security with our 4 year old Granddaughter on a trip to Panama City Panama on 28 July 2009.

    My wife had her right index finger bandaged and supported by an aluminum support. She had been tended to at INOVA Hospital at Alexandria VA on the 25th of July. Her finger had been accidentally slit open with a razor blade while she was cleaning the vanity top of the master bedroom and had 6 stitches holding it together.

    Without reason nor explanation she was submitted to search and inside the plastic see-through cubicles on the other side of the walk through scanner. The burly female TSA employee in a very rude manner ordered her around as you do a POW, She made her spin around like a top while she ran the wand all over her body inclusive in between her legs, actually slapping her parts as she slid it up and down in between her legs.

    My wife cannot hold her arms straight up for she has splintered bone fragments in the 5th, 6th and 7th cervicals. She requested an interpreter in Spanish for she does not speak nor understand English fluently, but to no avail the TSA employee press on with her body scan, made her unbuttoned her pants and pull it forward where she could peek in and see her private parts. This went on for almost 25 minutes non stop. Then she called for a doctor, For what purpose or reason we dont know for no one took the time to explain to her what they where looking for or why. Apparently a supervisor approached the TSA abuser and ordered her to release her. This happened without a word of apology.

    We want to bring this woman to justice. We are not rich, and do not have the money to put down the retainer that lawyers normally want to charge you up front. But, would want to talk to one who will listen to us and determine if we have a case and proceed with a lawsuit for the public humiliation and physical exacerbation of pain which my wife is enduring over her shoulder and right arm as a result of methodology and verbal abuse she was a victim of from the TSA employee.

  21. Pingback: Today we’re all prisoners in the USA – Papers, Please! « Truth11

  22. Pingback: Papers, Please! » Blog Archive » TSA releaseS excerpts from guidelines for searches

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  24. I am writing in response to your statement ” There is a Federal law against carrying (1) more than $10,000 (the police and/or TSA continued to detain Mr. Bierfeldt after counting the $4700 in his possession) (2) across the US border in or out of the country (Mr. Bierfeldt had a boarding pass for, and was attempting to board, a domestic flight), (3) without having declared it on a specified form to the Department of the Treasury (which the TSA and police had no way to know if Mr. Bierfeldt had done, didn’t ask him about, and gave no indication that they had tried to find out). In any event, this law is not policed or enforced by the DEA or the TSA.” This is NOT true. Any amount of currency or negotiable monetary instruments may be carried across international borders into or out the United States. The legal requirement is to report the transporation of amounts in excess of $10,000. This can be found in Title 31 United States Code 5316. I believe the question concerning the money could be addressed in Title 21 United States Code 981 and the seizure of money suspected as being proceeds in a narcotics transaction. This is investigated by DEA and DHS/ICE. This situation however concerns me as to my knowledge, TSA Officers do not have any independant enforcement authority and may only refer suspected violations to other agencies. I question as to what violation was suspected in this situation.

  25. While I’m in no way support TSA’s abilities to suppress basic freedoms, still, from the pure law standpoint, their actions are legal, and the basis is right there in the law you quoted:
    49 USC 44902(b) b
    Mandatory Refusal. – The Under Secretary of Transportation for Security shall prescribe regulations requiring an air carrier, intrastate air carrier, or foreign air carrier to refuse to transport – (1) a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or (2) property of a passenger who does not consent to a search of the property establishing whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance. (b) Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety. (c)

    (b) specifically allows TSA to refuse travel to anyone who they think is inimical to safety; since it does not provide any limits on the considerations that lead to such conclusion, those considerations can be any, including answers to any questions, or refusing to answer those questions. In the recent incident with the student Nick George who was arrested for studying Arabic language because that’s the language Bin Laden spoke, TSA claimed that he was detained because of behavioral analyst tip. This, as well as the Arabic language, is already good enough to refuse travel. Further, TSA can and probably will argue that all this also provides sufficient probable cause for arrest, since they suspect that the individual is about to commit a crime (basing on behavior etc.) Arguing whether these considerations and conclusions are reasonable won’t work either because they will say that their multi-million-dollar research tells them that their behavioral analysis is reliable indicator of the terrorist crime in progress, and they won’t divulge any further details because of security concerns.

    In addition, looking at the numerous comments people leave about these stories where they say that there’s absolutely nothing wrong with arresting anybody suspicious (they are in clear majority), this idea apparently has very broad support. Specifically, Nick George has been asked by TSA what he thinks about 9/11, and he said that this is complicated issue; now look at the dozens of comments all saying that having him arrested for that answer alone was not only justified, but absolutely necessary.

  26. Vadim: The first section you cite is limited to searches (which doesn’t include not answering questions) for specific purposes (which do not include searches for credentials or other evidence of identity). And it pertains to actions taken pursuant to regulations, whereas there are no regulations (only non-regulatory and partially secfret “procedures”) governing most TSA searches and interrogations, or the obligation of travelers to submit to them. The second portion your cite is subject to general rules including those at 49 USC 40101 (2) (“A citizen of the United States has a public right of transit through the navigable airspace”), and 49 USC 40101 (c) (“the Administrator … shall consider the following matters: … (2) the public right of freedom of transit through the navigable airspace”), as well as the First Amendment, Constitutional rights to substantive and procedural due process, and international treaty obligations under the ICCPR.

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  30. What law allows TSA to levy penalties on travelers who unknowingly have prohibited items in their luggage?

  31. First, someone in a related site mentioned that the TSA is NOT a law enforcement agency and therefore exempt in its activities.

    However, the information given here actually PROVES that TSA agents are deputized to make specific types of arrest. Therefore any and all actions they take as agents of the government (anyone with authority to make an arrest on behalf of the government is an agent thereof) they must follow ALL relevant law, maintain all civil rights and etc.

    It is therefore illegal or them to confiscate anything or search for anything without a warrant, even a bomb or a knife IF they must do so physically (scanners etc would be allowed) then they would need a warrant to do so. Certainly holding a passenger for the local or federal police means that they have made an arrest. They can not hold you in any way without an arrest. Holding this person was by definition “kidnap”. It was for certain a violation of civil liberties and rights.

    I know that $$ is always the root of cause and the root of answer….but unlike sworn police officers there is NO personal protection against civil action against TSA employees. Get their names and DON’T complain to TSA. Instead file a civil suit against the employee.

    The employee would have to file a cross complaint against his boss if he wanted protection from personal liability! This would prove intent in the end.

    No, I am not an attorney but well read and think outside the box to resolve problems all the time.

    Hope this helps.

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