The TSA may try to prevent (some) people who can’t or won’t submit to virtual strip-searches from traveling by air, according to a Privacy Impact Assessment (PIA) update quietly posted on the DHS website a few days before Christmas:

TSA is updating the AIT [“Advanced (sic) Imaging Technology”] PIA to reflect a change to the operating protocol regarding the ability of individuals to opt out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations.

The DHS and TSA may have hoped that nobody would notice this change in “operating protocol”, but the new requirement for some air travelers to submit to virtual strip-searches has already been challenged in at least two Federal Circuit Courts of Appeal, as discussed further below.

Air travelers are required by Federal law and regulations to “submit” to “screening”, but neither the law nor the regulations define “submit” or “screening”. In the absence of any publicly-disclosed rules, the de facto rule is that travelers have to do whatever checkpoint staff tell them to do, under penalty of not being allowed to fly and/or being subject to potentially hefty administrative fines. The only way to get a court to review any “order” of the TSA is first to exhaust the TSA’s kangaroo-court administrative appeal procedures and then to bring an expensive lawsuit in a Federal Court of Appeals under special procedures which are stacked in favor of upholding the TSA’s actions.

No court has yet considered the legality of mandatory virtual strip-searches, because the TSA has never before claimed that it has any authority to require submission to body imaging as a condition of travel. In response to each of the many lawsuits that have been brought against the TSA’s use of body scanners, the TSA and DHS have argued that any objections to virtual strip-searches are mitigated by the TSA “allowing” would-be air travelers to opt out of virtual strip-searches, and still be “allowed” to fly, provided these travelers were willing to submit to manual groping (including of their genitals) by checkpoint staff as an alternative mode of “screening”.

Now, apparently, the TSA is claiming the authority to require (some) individuals to submit to virtual strip-searches as a condition of travel by air, and acting on that claim of authority.

Courts have ruled that once a traveler enters the TSA checkpoint, they can be required to complete whatever the TSA subsequently defines as “screening”, even if they decide they would prefer not to travel. So anyone who enters a TSA or contractor checkpoint and then declines or is unable to submit to body imaging could now be subject to TSA civil penalties.

Perhaps worst of all, which travelers will and which won’t be required to submit to virtual strip-searches is neither uniform nor based on any publicly-disclosed criteria. Either it is based on secret criteria (most likely the Secure Flight pre-crime profiling algorithms, based on secret databases about individuals, that are already used to decide how intrusively to search travelers, and whether to allow them to fly at all), or it is based on the “discretion” of TSA checkpoint staff or contractors — a practice that invites abuse of discretion, as we said in our comments on the TSA’s proposed rules for use of body scanners:

In the absence of any definitions of “submit” or “screening”, the current and proposed rules are unconstitutionally vague and overbroad. Travelers subject to the rules can’t tell what is prohibited or what is required as a condition of travel by air by common carrier, or which actions at TSA checkpoints are and aren’t subject to TSA civil penalties….

The TSA has refused to disclose its Standard Operating Procedures (SOPs), even though it claims that they constitute “final orders” of the agency with which members of the public are required to comply. It’s impossible for travelers to know, with respect to any aspect of TSA checkpoint requirements or prohibitions, whether there are no rules or there are secret rules, or what, if any, guidelines there are for decision-making by TSA staff or contractors as to what constitutes “submission” or “screening”.

To make matters worse for travelers trying to figure out what is required and what is prohibited, the TSA’s practices are deliberately subject to variation, and are deliberately unpredictable. There is no way, in this situation, for travelers to distinguish authorized from unauthorized demands, or legitimate from illegitimate exercise of authority. It should be no surprise that petty tyranny and abuse of (claimed) authority are the most common complaints against TSA staff and contractors.

We can scarcely imagine imagine a situation more ripe for abuse of discretion than one where the rules (if there are any rules) are secret, the procedures are constantly changing and deliberately unpredictable, and members of the public can’t even tell which specific actions or inactions have previously been deemed to be subject to civil penalties or, worse, denial of the right to travel.

This is a textbook case of a vague rule and of the reasons why such vagueness is prohibited. If there are to be any requirements or prohibitions on what travelers can and can’t (or must) do, can and can’t (or must) wear, or can and can’t (or must) say at TSA checkpoints (other than those which would otherwise apply in such a public facility where travelers with tickets on common carriers have a statutory right of passage), the TSA needs to spell the rules out, publicly, so that travelers don’t have to get arrested and contest criminal charges, or contest a proposed civil penalty, to find out whether something is or is not contrary to the TSA’s secret orders or secret standards for traveler behavior.

In response to one of the lawsuits challenging the TSA’s use of body imaging devices, the TSA was ordered to give public notice of its proposed rules for use of body imaging devices, and accept and consider comments from the public on those rules before issuing final rules. The rules proposed by the TSA in 2013 would provide that, “The screening and inspection [to which air travelers are required to “submit”]… may include the use of advanced [sic] imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.”

If that proposed rule were to be finalized and not overturned by the courts, it would provide a basis for mandatory virtual strip-searches. But the analysis accompanying the proposed rule, and the government’s statements about it in court, all described optional screening from which travelers would be allowed to opt out if they consent to manual groping.

The TSA received more than 5000 comments from members of the public on its proposed rules for virtual strip-searches, almost all of them opposing the proposal — even with the “opt-out” alternative of manual groping.

The TSA has yet to respond to the public comments or finalize its rules for virtual strip-searches. In response to another of the ongoing lawsuits concerning the TSA’s use of body imaging devices, the TSA recently said it plans to issue final rules by March 3, 2016. But it has given no indication as to what the final rules will say, or whether or how they might differ from its original proposed rules.

Mandatory submission to body imaging raises numerous new Constitutional and other issues, in addition to all of the reason so many people objected to TSA body scanners even if they were “allowed” to opt for manual groping instead of automated scanning. Many people are simply unable to assume the position required for scanning, either because they can’t stand unassisted without using their hands (e..g anyone who needs a cane, walker, or wheelchair) or because they can’t raise their arms above their head (e.g. people with “frozen shoulder”, a common ailment affecting range of motion that typically lasts for months). Others are unwilling to do so for religious reasons. Can these individuals legally be prevented from traveling by common carrier, or subjected to civil penalties?

Two motions for preliminary injunctions against mandatory body imaging as a component of TSA screening and a condition of air travel were filed within days of the TSA’s disclosure of its new protocol. These lawsuits by our friends Sai and Jonathan Corbett were both brought pro se. Both of these pro se plaintiffs could use financial support, and Sai is seeking pro bono legal assistance.

Jonathan Corbett’s earlier petition for review of the TSA’s use of imaging with an “opt-out” alternative was dismissed by the 11th Circuit Court of Appeals in Atlanta, and the Supreme Court declined to review it. Corbett v. TSA is a newly-filed petition for review of the TSA’s mandatory body imaging, also in the 11th Circuit.

Sai’s petition for review of all TSA “orders” affecting him was already pending in the 1st Circuit Court of Appeals in Boston as Sai v. Neffenger. Sai has requested an emergency preliminary injunction and temporary restraining order against mandatory body imaging in that existing case.

Motions for preliminary injunctions, especially when made on an emergency basis, are typically decided much more quickly than are the underlying cases (although they don’t determine the eventual outcome of the underlying cases). We’ll keep you posted.