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:

• On June 2nd, the U.S. District Court for the Southern District of Ohio ruled in U.S. v. Fofana that a TSA search of a would-be passenger on a domestic airline flight violated the 4th Amendment, where “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”, where “it appeared that [the TSA agents] considered Fofana to be suspicious based on the fact that he was carrying a large amount of cash, but that the ‘suspicion’ was not based on a concern that he was a security risk,” and where “the Government failed to produce evidence from which this Court could conclude that the search of Fofana’s luggage was ‘no more extensive or intensive than necessary, in light of current technology, to detect the presence of weapons or explosives;’ or that the search was ‘confined in good faith to that purpose.'” (Quoting the section of the decision by the 9th Circuit last year in Aukai that we recently mentioned here.) Holding that “The Government bears the burden of establishing that a search was constitutional,” the Court ordered that evidence obtained from the search (including passports and cash found in sealed envelopes in carry-on baggage) be suppressed from use against the traveler in a criminal trial that had resulted from these findings by the TSA in his luggage.  In a particularly interesting footnote, the Court noted that “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…. 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.”  And the Court ruled that any “good faith” exception to the exclusionary rule would  apply only to a good-faith belief in the validity of a warrant: “The good faith exception … has no application in the context of a warrantless administrative search. This Court is unaware of it ever having been applied in the context of an airport screening search and declines to extend its application to the facts of this case.”  So far as we know, this is the first ruling since the creation of the TSA to find any of their activities to be either unconstitutional or otherwise illegal. (Thanks to the Flyertalk forum members who called attention to the decision and posted the as-yet-unpublished opinion here and here.)
• On June 18th, the ACLU filed suit in Washington, DC, on behalf of Steve Bierfeldt, whose search (not limited to a search for weapons or explosives), interrogation, and detention by TSA agents at Lambert Airport in St. Louis, MO, we reported on here this April.  You can listen to a recording of the incident on several websites, including here. The complaint in Bierfeldt v. Napolitano seeks, in addition to damages and a declaration that the TSA exceeded its authority, a permament injunction barring the TSA “from authorizing or conducting suspicionless pre-flight searches of passengers or their belongings for items other than weapons and explosives”.  (The complaint discusses the search, interrogation, and detention, but the requested declaratory and injunctive relief would appear to address the illegality only of the search, not the interrogation or detention.)
• In Congress, the House voted 310-118 on June 4th, against the requests of the majority leadership, to approve an amendment to the proposed TSA Authorization Act (which is otherwise a very bad bill ratifying many of the TSA’s excesses) to limit the TSA’s use of “virtual strip search” machines that allow concealed TSA employees to view zoomable high-resolution images of travellers, taken through their clothes, that show their bodies (and anything under their clothes) as though they were naked.  The amendment is narrow, and stops short of a complete ban on so-called “Whole Body Imaging”. There is as yet no parallel to this bill in the Senate.  But it’s an important step as the first act by either house of Congress, again since the creation of the TSA, to specifically prohibit the TSA from doing something the TSA was already doing (and, since the Senate has yet to act, continues to do today) or claimed was necessary for the sacred cow of “transportation security”.
• In the other chamber of Congress, the PASS ID Act (S. 1261) introduced in the Senate on June 15th contains a provision in Section 242 (a) (1) (B) that “no person shall be denied boarding a commercial aircraft solely on the basis of failure to present a driver’s license or identification card issued pursuant to this subtitle.”  This is part of a terrible bill, which we strongly oppose. We agree completely with Jim Harper’s take that this is merely a “lite” version of a national ID law, and that there is no good reason to “replace” the REAL ID Act rather than simply repeal it.  The PASS ID Act would still leave loopholes for the TSA to deny “permisison” to travel on other grounds, such as failure to “cooperate with screening”. But we welcome the initiative — again, the first such in the Senate since the creation of the TSA — to anticipate and preclude a TSA assertion of new authority. (The PASS ID Act would also make it a “unlawful for any person, knowingly and without lawful authority– (1) to scan the information contained in the machine readable component of a driver’s license or identification card; or (2)(A) to resell, share or trade that information with any other third parties; (B) track the use of a driver’s license or identification card; or (C) store the information collected.”  This provision is apparently intended to include a prohibition on reading of the data on RFID chips in Enhanced Drivers Licenses.)

Congress shouldn’t have to enact laws spelling out that agents of the Federal government have to comply with the Constitution and respect our human rights when we travel. Courts shouldn’t have to issue injunctions to get those same government agents to comply.   Government agencies and agents shouldn’t assume that, unless and until they are hauled into Court and ordered to desist, they can violate the Constitution and the rights of the public with impunity.

But as long as that’s how the TSA thinks and acts, we welcome even these first baby steps toward judicial and legislative oversight of an out-of-control agency of the police and surveillance state.  We’ll be equally happy if the Obama Administration also starts to exert some Executive oversight, which could bring the TSA to heel with the stroke of a pen.