Jun 25 2009

Courts and Congress finally start to rein in the TSA

Until recently, the TSA has been a domestic legal Guantanamo, and the TSA has treated their domain of “checkpoints” and travel control and surveillance as a law-free zone where their powers of search, seizure, detention, and denial of passage were unconstrained by the Constitution, human rights treaties, judicial review, or stautory or regulatory standards.  As indeed it has been: Congress has enacted no law specifically defining any limits on the authority of TSA agents at checkpoints (or elsewhere), and the TSA itself has never conducted any rulemaking or issued any publicly-disclosed regulations defining its authority, the limits of that authority, what orders travellers do or don’t have to comply with, and which forms of “noncooperation” are considered grounds for which sanctions (more intrusive search, denial of transportation, admninistrative fine, detention, etc.). While the TSA has never been explicitly exempted from the Constitution or treaties such as the International Covenant on Civil and Political Rights, the DHS has sought to avoid ever allowing judicial review of fly/no-fly decisions, and the courts themselves have gone out of their way to avoid ruling on the legality of TSA actions — such as when the 9th Circuit invented a counter-factual claim (without ever allowing an evidentiary hearing on the facts) that John Gilmore hadn’t actually been required to show ID credentials in order to fly, as a way to avoid ruling on whether an ID-to-fly requirement would be Constitutional. As for the Executive, President Obama has yet to nominate an Administrator of the TSA, leaving this one of the highest-ranking vacancies in the Administration and leaving the TSA operating on autopilot under lame-duck holdovers.

In the absence of any explicit rules or any judicial, legislative, or executive oversight, the TSA has felt no need to seek authority for its ever-expanding assertions of authority through legislation or rulemaking.  Nor has the TSA recognized any duty of self-restraint or self-policing to ensure its actions conform to the law. Instead, the TSA has simply wielded its power to do whatever it wished, on the disgraceful assumption that, “If we’re doing something wrong, the courts will tell us — if and when someone can afford to sue us, and they win a court judgment against us.”  In the meantime, the TSA will do, and claim the right to do, anything that hasn’t already specifically been ruled illegal. Kind of like the thief who assumes that they can steal whatever they want, and that if something turns out not be theirs, they’ll give it back if and when someone sues and wins a court judgment ordering its return.

Time and again we’ve pointed out this failure to subject the TSA to the rule of law. See, for example, our most recent prior post on this topic, our agenda on the right to travel submitted to the Obama Administration and Congress after the 2008 elections, and our comments earlier this month at the Computers, Freedom, and Privacy conference session with Obama Administration representatives and others at 1:45:53 of this video.  Until recently, however, neither the Courts, the Congress, nor the Executive branch have wanted to confront the question of what rules govern the TSA.

We’re please to report that this is finally beginiing to change, in small ways but on numerous fronts:

Read More

Jun 23 2009

“Clear” registered traveler company fails after wasting $116M

260,000 members down the tubes. No refunds.

Congratulations, suckers! Not only did you sign up for and pay money to a totalitarian program, but as usual, the police state was run by incompetents. Your little attempt to suck up to the TSA gestapo now won’t be doing you any good.

Their competitor “Flo Corp” is working hard to “analyze the implications of this announcement”. We can give them some help. A tiny minority of Americans signed up for the National Security State you offered them. You lost the election, the people voted with their wallets and their feet. Your fly-by-night stock is hovering right near 1cent per share. So get a clue and get out of the business while you still can pay your debts. What the public deserves is reform of the whole TSA system, so it provides real rights and real service and real accountability to EVERY traveler — not just to rich guys happy to have their iris and fingerprints on file. TSA’s culture of impunity needs to end, then we’ll all get along a lot better.

Oh, and to investors in Clear? It’s charming how you hoped to profit from funding the totalitarian tracking of the movements of all the citizens. (You couldn’t hope to make money at it unless pretty much every traveler signed up for it.) We’re so glad that every dollar you gave Clear is now a dollar that you can’t waste on your next socially destructive idea.

Jun 04 2009

Are there any rules at airport checkpoints?

We had a chance to ask some questions (starting at 55:00 of the video, although the entire panel is worth watching) of the TSA’s Chief Privacy Officer, Peter Pietra, when he showed up at the Computers, Freedom, and Privacy conference to talk about the SPOT program, under which roving teams of TSA agents watch people in airports for a (secret, of course) checklist of “suspicious” behavior, question some of those people, and finger some of them for more intrusive search or further questioning when they reach the “screening” checkpoints.

Petra claimed that, “There isn’t any search or seizure … until the checkpoint”, even if you decline to respond to questions from the SPOT teams or other TSA agents.  But, “At the checkpoint, it’s a different story … There’s a ‘special circumstances’ exception that would permit at least a reasonable search.”

But what does the TSA consider “reasonable”? In particular, once we get to the checkpoint, are we required to answer questions from the TSA?

“I don’t know,” Petra said.

If we decline to answer questions at a TSA checkpoint, does the TSA claim the authority to detain us, prevent us from traveling, or impose administrative sanctions?  Or is the maximum penalty for declining to answer TSA questions having to submit to a pat-down search and hand search of our carry-on baggage (“secondary screening”)?

“Once you get to the checkpoint, you have to ‘cooperate’ with screening.”

What does “cooperate” mean? Are there any guidelines that tell us what we are required to do to consitutute “cooperation” with screening at a checkpoint?

“I don’t know,” Petra again answered.

We asked Petra to try to find out, but we won’t hold our breath waiting for an answer.

Jun 03 2009

Congress to vote on virtual strip searches

The U.S. House of Representatives will vote this week on a proposal to (1) restrict the use of virtual strip search machines at airports, (2) prohibit their use as a “primary” screening method (i.e. in place of curent metal detectors) or “unless another method of screening, such as metal detection, demonstrates cause for preventing such passenger from boarding an aircraft,” and (3) require that people selected for “secondary sccreening”  be told what the “Whole Body Imaging” machines do (a TSA agent out of your sight in a back room examines and can zoom in on any area of a picture taken using microwaves that pass through your clothes and show your body as though naked) and be offered the choice of a pat-down instead of a virtual strip search.

This proposal doesn’t go nearly far enough, but it’s an important first step.  Currently, no law or published regulation places any restrictions on any aspect of TSA activities at checkpoints.  What’s needed is to subject the TSA’s  domestic Guantanamo at every airport to the rule of law and the standards applicable to search, seizure, interrogation, and detention in any other context.

As travel commentator Charlie Leocha wrote in his column yesterday, “The last time I checked, there was a law about ‘reasonable suspicion’ before subjecting someone to a strip search. Is simply the act of getting on a plane now considered ‘reasonable suspicion’?”  (Today Leocha reports on the result of an informal online survey of his readers, showing that more than two-thirds of respondents think this is “an invasion of privacy”.)

The proposal was originally a standalone bill (H.R. 2027) introduced by Rep. Jason Chaffetz (R-UT), but will now be voted on as an amendment to H.R. 2200, the TSA Authorization Act.

What can you do?  Visit StopDigitalStripSearches.org and sign the online petition endorsed by the Identity Project.  More importantly, call and/or email your member of Congress today and urge them to vote FOR the “Chaffetz amendment on Whole Body Imaging” to H.R. 2200, the TSA authorization bill.

Rep. Chaffetz’ point person on this issue tells us they expect the House floor vote will most likely be Thursday, June 4, 2009.

Jun 01 2009

Today we’re all prisoners in the USA

As of today, June 1, 2009, even U.S. citizens are officially prisoners in the USA, or exiles barred from entering our own country without the government’s permission.

We are now forbidden by Federal regulations from leaving or entering the USA, anywhere, by any means — by air, by sea, or by land, to or from any other country or international waters or airspace — unless the government chooses to issue us a passport, passport card, or “enhanced” drivers license (any of which “travel documents” are now issued only with secretly and remotely-readable uniquely-numbered radio tracking beacons in the form of RFID transponder chips), or unless the Department of Homeland Security chooses to to exercise its standardless “discretion” to decide — in secret, with no way for us to know who is making the decision or on what basis — to issue a (one-time case-by-case) “waiver” of the new travel document requirements.

If you’re in the USA without such documents — even if you were born here, or are a foreigner who entered the USA legally without such documents (a Canadian, for example, who entered the USA by land yesterday when no such documents were yet required), or your document(s) have expired or have been lost or stolen — you are forbidden to leave the country unless and until you procure such a document, or unless and until the DHS gives you an exit permit in the form of a discretionary one-time waiver to leave the country — but not necessarily to come home, unless they again exercise their discretion to “grant” you another waiver.

If you are a U.S. citizen abroad without such a document (for example, if you entered Canada legally without it yesterday by land, when it wasn’t required, or again if your document(s) are expired, lost, or stolen) you are forbidden to come home unless and until you can procure a new document acceptable to the DHS, or unless and until the DHS gives you permission to come home in the form of a discretionary one-time waiver. Read More