- TSA “screeners” are not law enforcement officers. Despite wearing police-type uniforms and calling themselves “officers”, they have no police powers and no immunity from any state or local laws. At some airports, notably San Francisco (SFO) and Kansas City (MCI), they aren’t government employees at all, but rent-a-cops employed by a private contractor. They cannot legally arrest or detain you (except as a citizen’s arrest, the same way you can arrest them if they commit assault or battery). All they can do is call the local police.
- You have the right to remain silent, including when questioned by TSA “Behavior Detection Officers.” Anything you say may be used against you.
- You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners. Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you. In addition, the Federal “Privacy Protection Act of 1980” (42 USC 2000aa) forbids TSA staff or police from searching or seizing photographs, audio or video recordings, documents, or electronic data, if you possess these materials in connection with an intent to distribute them publicly, including online distribution such as posting them on Facebook, Youtube, etc. There are some exceptions to this law, including a limited exception for searches and seizures by customs inspectors (not the TSA) at international ports of entry (not domestic airports). But there is no general airport or TSA exception to this law.
- You have the right not to be assaulted or battered (sexually or otherwise), falsely arrested, unlawfully detained, or kidnapped. You may have the right to make a criminal complaint and/or a citizen’s arrest of someone who assaults you, and/or to sue them for damages. You should consult the applicable laws, including local laws, and/or an attorney, if you plan to do any of these things.
- Under most airlines’ conditions of carriage, you have the right to a full and unconditional refund if the airline refuses to transport you because you won’t show ID or won’t “consent” to whatever they want to do to you in the name of “screening”. Read this first: Here’s what to do to protect your right to a refund. If the airline refuses to give you a full refund, you can sue them for damages and request that the US Department of Transportation investigate and fine them.
- If an airline cancels your reservation or refuses to transport you, you may be entitled to collect damages, and you can request that the US Department of Transportation (and, if you were denied passage to the USA from another country, that country’s authorities) investigate and fine or impose other sanctions on the airline.
- You have the right to freedom of movement, guaranteed by the First Amendment (“the right of the people… peaceably to assemble”) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty to which the US is a party: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.” Federal law (49 USC § 40101, part of the Airline Deregulation Act of 1978) requires the TSA to consider “the public right of freedom of transit” by air when it issues regulations.
Can you get your money back if you opt out of the TSA’s assault on your freedom? Yes, but airlines don’t want to admit that. (That’s nothing new.) You may have to put up a fight.
Here’s what’s happening, and what you can do:
With National Opt-Out Day coming up, travel journalist Christopher Elliott contacted several airlines to see how they would handle requests for refunds from ticketed passengers who aren’t allowed to fly because they opt out of being x-rayed or groped.
Disturbingly, several airlines (American, Southwest, United/Continental, and US Airways) told Elliott that they would not give refunds to such passengers holding nonrefundable tickets.
Airlines can’t just make up new rules governing tickets and refunds after tickets are issued. Those rules are published in airlines’ tariffs and conditions of carriage, as filed with the Department of Transportation.
Almost all airlines’ conditions of carriage provide that, if an airline refuses to transport you, you are entitled to a full and unconditional “involuntary refund” of all fares, fees, and charges, even if the fare at which your ticket was issued is otherwise completely nonrefundable.
American Airlines, for example, told Elliott:
“Our refund rules that are in place now, apply,” says a spokeswoman. “If the customer has a refundable ticket, then we will refund. If the customer has a non-refundable ticket, then we can offer a voucher.”
But American’s actual rules are contained in their conditions of carriage, as follows:
In the event the refund is required because of American’s failure to operate on schedule or refusal to transport, the following refund will be made directly to you –
- If the ticket is totally unused, the full amount paid (with no service charge or refund penalty), or
- If the ticket is partially used, the applicable fare for the unused segment(s).
If American or another airline with similar terms in its contractual conditions of carriage refuses to give you a full and unconditional refund (not merely a voucher), they are liable to you for damages if you sue them, and liable to enforcement action and fine by the Department of Transportation.
So what’s the best strategy if you already have a ticket and want to opt out of virtual strip-search and groping?
This morning on the “Today” show, TSA Administrator and former FBI agent John Pistole said that the TSA is “actively rethinking its policy” to require all travelers to submit to either an x-ray virtual strip search or vigorous groping of their breasts and genitals.
We aren’t reassured or appeased. The process of “rethinking” described by Pistole, like the TSA procedures themselves, would remain entirely secret, internal, and extra-judicial.
The problem with the TSA is not with exactly how it has exercised its secret, standardless administrative “discretion,” but the fact that the TSA has been allowed to opt itself out of the rule of law.
Last Friday the New York Times editorialized that, “The government could start by making their screening guidelines clear.” The government could do so — but the TSA won’t unless it is forced by direct orders from the President, the Congress, or the Federal courts. We cannot rely on the TSA to restrain or reform itself.
There are no laws or published regulations defining what the TSA is allowed to do. The TSA has claimed in response to our requests that all of its procedures and directives for airport checkpoints are exempt from the Freedom of Information Act (FOIA). The DHS Privacy Office ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, including the White House liaison. Apparently that approval has never been given. We’re still waiting.
When John Gilmore challenged the checkpoint practices in court, the DHS refused to show him the documents that they showed the judges “in camera” to persuade them to dismiss his case. The Supreme Court refused to consider his appeal of this secret lawmaking.
Former Secretary of Homeland Security Chertoff said repeatedly and publicly that administrative DHS “no-fly” decisions should be exempt from judicial review. Neither current DHS Secretary Napolitano nor President Obama have done anything to dissociate themselves from that position.
Now the ACLU and EPIC are both collecting reports and complaints about what happens at TSA checkpoints. But we have no confidence that public exposure of what is happening will in itself prompt any change in behavior by an agency whose motto appears to be, “We don’t care – we don’t have too.” Everyone already knows that the TSA is groping grandmothers, probing under diapers and sanitary napkins, and requiring removal and examination of breast and other prostheses. All while threatening or even arresting those who try to protect themselves by documenting the process with photographs and/or recordings.
EFF has information on how to complain to the TSA and DHS. But those complaints would also be dealt with, if they aren’t ignored, solely by secret procedures within those agencies. What, if anything, is done as a result will remain unknown to the complainants and the public.
Clearly, the TSA has crossed the line of what the traveling public will tolerate. But the solution is not for the TSA to retreat slightly (and perhaps only temporarily) in response to public outrage. That will only leave us with endless scrimmages over where to draw the line, with the TSA not an iota less invasive than the most intrusive processes that they think they can get away with.
The real need is to put the TSA — for the first time in its existence — clearly within the rule of law. That’s why we think what’s most important about EPIC’s lawsuit against the TSA is not the specific issue of virtual strip searches (important though this is) but the fundamental complaint that the TSA has ignored formal petitions for rulemaking. EPIC’s central claim is that the TSA has refused to give public notice of proposed rules, accept public comments, and make a public determination that could be subjected to review by the Federal courts.
Liability, both organizational and personal, is also important. Talk to a lawyer about bringing a criminal complaint or civil lawsuit against any TSA employees or contractors who act illegally against you. We’re pleased to see discussion of citizens’ arrests of overreaching (so to speak) TSA and contractor gropers. At least some local prosecutors are open to possibly pressing such charges. That’s especially significant at San Francisco International Airport (SFO), where the screeners are out on an especially thin limb of liability as private contractors rather than employees of the TSA or any other government agency.
“Opting out” of TSA demands or questioning and photographing the TSA is not a crime!
We’ve reported before on the arrest of Phillip Mocek just over a year ago at a TSA checkpoint at the airport in Albuquerque, New Mexico, and his prosecution by local authorities on trumped-up criminal charges.
Now, after several postponements, Phil Mocek’s trial is scheduled to begin with jury selection on Tuesday morning, December 7th, 2010, in Albuquerque. The trial is expected to last 2-3 days. There’s more information here.
(The trial has been postponed several times, and might be postponed again, but this date appears to be for real, and Mr. Mocek is making firm travel plans — by land, not by air — to be in Albuquerque.)
We encourage everyone who opposes the TSA’s lawless assault on our liberties to support Mr. Mocek. Spread the word about this case, especially to people you know in New Mexico. Contribute to Mr. Mocek’s legal defense. (He had to hire private lawyers to defend himself.) Come to the trial in Albuquerque if you can. Pass out a leaflet. Speak out and stand up to the TSA yourself.
This is the first TSA checkpoint resistance case to come to trial, and this trial comes during an unprecedented and spontaneous explosion of grassroots resistance to the TSA’s claim to unlimited authority. The outcome of Mr. Mocek’s trial will be critical to whether that resistance continues to snowball, or whether the TSA and its allies in authoritarianism can terrorize and intimidate law-abiding travelers into submission to their illegitimate authority.
There are no laws or published regulations defining what the TSA is allowed to do. In response to a Freedom of Information Act (FOIA) request from Mr. Mocek, the TSA has refused to release its secret procedures and directives for airport checkpoints. And the DHS Privacy office has ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, which apparently has never been given.
In these circumstances, only the courts can define the limits of TSA authority to search, interrogate, x-ray, and grope innocent travelers who are not suspected of any crime. So far as we know, Mr. Mocek’s case is the first time someone in the USA has been brought to trial on criminal charges for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.
We’re pleased and excited to see the spontaneous outpouring of grassroots outrage at the latest TSA “Standard Operating Procedures”, which offer would-be air travelers a Hobson’s choice between forms of submission to secret rules, illegitimate authority, and invasion of personal privacy.
TSA wants us to choose between a virtual strip-search (x-ray or similar photography through your clothes, with the as-though-naked high-resolution photos viewed by a TSA agent or rent-a-cop out of your sight somewhere in a little porno booth in the bowels of the airport), versus vigorous manual groping of your entire body with special attention to your genitals and breasts.
We’re equally pleased and excited to see that outrage move beyond mere complaint to direct action and resistance, primarily by those “opting out” of both the “whole body imaging” and the groping, and calling on others to do the same.
We thank those who are taking action, even what we think may be ineffective or insufficient action, against TSA’s excesses. The public’s frustration with TSA’s ever-escalating demands was bound to explode eventually, and we hope that time has truly come. We just hope that the results will move us in the direction of real reform, rather than “concessions” that leave us worse off than before, or band-aids followed by more excesses after the public calms down.
For many years, TSA has been writing its own laws, in secret, in the form of “Security Directives” to airlines and “Standard Operating Procedures” for TSA employees and contractors. We’ve requested the directives and procedures that purport to say what travelers are required or prohibited from doing. That’s our right under the Freedom of Information Act (FOIA). To date, TSA has either refused our requests outright or ignored them. For months, until they were caught by the Associated Press, the most senior FOIA and “privacy” officer for DHS gave direct orders to the TSA not to provide us with any responses without express prior permission from DHS headquarters.
“Get photographed as though naked or get groped” isn’t the only new TSA imposition. This month, apparently, TSA issued more secret orders to airlines as part of its illegal Secure Flight passenger surveillance and control scheme. The airlines have begun threatening to cancel reservations and deny transportation to paid and ticketed would-be passengers who haven’t provided the airlines (and thus the TSA) with their “full name”, gender, and date of birth. No law requires passengers to do so, but TSA is trying behind the scenes to force airlines to refuse to carry people who don’t.
So what is to be done? Real reform of TSA procedures would include: