We still don’t know what’s in the secret “Standard Operating Procedures” for TSA checkpoints, although we are still pursuing our FOIA requests and appeals for them.

But there’s an important admission about those procedures in a letter sent this week to the Texas legislature by the Texas representative of the U.S. Department of Justice, as part of a (successful, unfortunately) Federal lobbying campaign against a bill to outlaw sexual or offensive touching as part of searches required for access to public buildings and transportation.

The Texas bill, H.B. 1937, would have applied only to a “public servant” (including government employees and contractors) who “intentionally, knowingly, or recklessly: (i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or (ii) touches the other person in a manner that would be offensive to a reasonable person,” and only if this action was not “performed … pursuant to consistent with an explicit and applicable grant the federal statutory authority that is consistent with the United States Constitution.”

According to the letter to Texas legislators from the US Attorney for the Western District of Texas:

[T]he bill makes it a crime for a federal Transportation Security Official (“TSO”) to perform the security screening that he or she is authorized in required by federal law to perform. The proposed legislation would make it unlawful for a federal agent such as a TSO to perform certain specified searches…. that provision would thus criminalize searches that are required under federal regulations.

Despite the label “Transportation Security Officer” and the US Attorney’s use of the term “agent”, TSOs and other checkpoint staff are not law enforcement officers. But there’s another implication to the US Attorney’s letter: The only searches that the Texas bill would have “criminalized” would have been those that involved sexual or offensive touching and were not performed pursuant to valid, Constitutional, federal statutory authority.

By claiming that the bill would have criminalized acts specifically required by TSA policy, the US Attorney’s letter constitutes an explicit admission that the checkpoint procedures (a) require sexual or offensive touching and (b) are not, in fact, being performed pursuant to Constitutional statutory authority. Otherwise, the bill wouldn’t have applied to them.

While we commend State Representative David Simpson and State Senator Dan Patrick for sponsoring HB 1937, we are disappointed that, after H.B. 1937 was approved by the Texas House, the Texas Senate allowed the bill to die without a vote in the face of Federal opposition and threats to ground all flights from Texas airports if it was approved.

Legislation like this should not, of course, be required. Offensive sexual touching at airport checkpoints, whether by TSA employees or by contractors, already violates sexual assault laws in most jurisdictions. The issue is not whether legislators will pass new laws, but whether local prosecutors will enforce existing laws.

TSA “screeners” are not law enforcement officers, and the lack of authority or immunity for violations of local law committed in the course of their duties is even clearer for the contractors who carry out the groping of passengers at San Francisco International and a few much smaller airports. With Texas having backed down, the next test will be how the San Mateo County District Attorney acts on the next complaint of sexual assault by one of the Covenant Aviation Security employees groping passengers at SFO.