- 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?