Last December we reported on indications that the Transportation Security Administration (TSA) had begun passing on information from airline reservations to Immigration and Customs and Enforcement (ICE) to enable targeting of domestic airline passengers for seizure and deportation. Ten days later, our report was confirmed by the New York Times.

In January, it was reported that ICE planned to set up immigration checkpoints for passengers on jetways at Minneapolis-St. Paul International Airport (MSP). That hasn’t happened, but the possibility prompted us to review some of the legal issues it raised.

Now President Trump has announced that starting Monday, March 23rd, ICE agents will be assigned to take over some of the work of TSA checkpoint staff, further merging and conflating the unrelated functions of aviation security and immigration enforcement.

What are your rights, especially as an airline passenger traveling within the US rather than seeking to enter or leave the country, if a checkpoint at the airport is staffed by ICE agents instead of, or in addition to, the usual TSA staff or TSA contractors?

No court has yet ruled on the limits to ICE agents’ authority in this context. ICE agents have long worked alongside agents of US Custom and Border Protection (CBP) at airports that handle international flights. But until the last few months, TSA checkpoints weren’t used as immigration checkpoints for passengers on domestic flights within the US.

Lawsuits are likely, especially if ICE agents at airport checkpoints seize domestic passengers for deportation on the basis of information in airline reservations.

Courts have upheld the authority of TSA checkpoint staff to conduct “administrative searches” of all domestic airline passengers, as long as those searches are limited to searches for weapons, explosives, and  other threats to aviation security. We presume that courts would allow the TSA to delegate authority for these searches to ICE agents, just as the TSA has delegated this authority to private contractors who staff the checkpoints at San Francisco International Airport  (SFO) and Kansas City International Airport (MCI), and some other smaller airports.

Almost all of the legal principles in our FAQs on Your Rights as a US Citizen and Searches at Airports and US Borders apply regardless of whether the people searching or questioning you are TSA checkpoint staff, ICE agents, or CBP or other law enforcement officers.

The one key difference between ICE agents and normal checkpoint staff is that ICE agents are law enforcement officers entitled — under a variety of Constitutional and statutory restrictions — to make arrests for violations of Federal law and to conduct searches for general law enforcement purposes. Most TSA checkpoint staff, whether they are TSA employees or contractors, aren’t law enforcement officers.

If TSA checkpoint staff arrest or detain you (physically restrain you from leaving), they are conducting a “citizen’s arrest”. If a citizen’s arrest doesn’t result in a criminal conviction, the person who made the arrest is personally liable for civil damages and criminal penalties that could included assault, battery, false arrest, and kidnapping.

On the other hand, if ICE staff wrongly arrest you, courts might give them “qualified immunity” as law enforcement officers, especially in the absence of clearly established law on their authority when acting on behalf of the TSA at airport checkpoints. Even without qualified immunity, law enforcement officers are allowed to arrest anyone, without a warrant, if they have probable cause to believe they have committed a crime.

This means that ICE agents at checkpoints can use more force than TSA checkpoint staff, with less chance of legal sanctions, even if you can afford to sue them.

TSA checkpoint staff have the authority to conduct “administrative searches” of airline passengers for limited purposes related to aviation security. All they can legally do if they find evidence of violations of other criminal or immigration laws is call the police. TSA staff can’t expand their “administrative search” for threats to aviation to look for evidence of other crimes or immigration violations, and they can’t physically stop you from leaving.

ICE agents or TSA staff are allowed to ask you any questions they like, but you don’t have to answer. No court has ever ruled that airline passengers on domestic flights can be required to answer any questions or be subjected to any sanctions for declining to do so.

TSA staff require airline passengers to remove their masks for “ID verification”, a demand that has not yet been reviewed by any court.  ICE agents observing “ID verification” stations at TSA checkpoints may try to scan passengers with their Mobile Fortify facial recognition and suspicion-generating app when they remove their mask for ID verification. It’s unclear whether a court would approve this opportunistic practice. ICE agents may also use Mobile Fortify at other unexpected locations in airports. Minimize the risk by wearing a mask throughout any airport and pulling your mask down as briefly as possible while standing closely in front of the ID verification staff person, not the camera. If they start to point a cellphone at you, turn away and pull your mask back up immediately.

As law enforcement officers, ICE agents have the authority (which TSA staff don’t) to detain you “briefly” and question you, but only if they have a “reasonable articulable basis” to suspect of some violation of Federal immigration or  criminal law. You are legally entitled to ignore their questions. Even if you remain silent, they are required to allow you to go on your way after no more than a “brief” delay unless they have by that time obtained “probable cause” (a higher standard than”reasonable suspicion”) to believe you are not a US citizen or have violated some law.

You have to submit to an “administrative search” for weapons, explosions, or other threats to aviation security, but you don’t have to consent to any additional search. To avoid being denied passage for refusing to consent to the required administrative search, you could say, if asked for consent, “I consent only to the administrative search required as a  condition of boarding my flight. I do not consent to any other search.”

The fact that you are passing through a TSA checkpoint, boarding a domestic flight, don’t have REAL-ID, don’t have any ID, show a non-US passport as ID, or exercise your right to remain silent is not in itself a basis for a reasonable suspicion that you have violated any immigration or criminal law, and does not provide a basis for detention or search.

ICE agents at TSA checkpoints are likely to delay travelers after they have completed their searches for threats to aviation security, in order to question and/or search them further for evidence of violations of immigration or other laws. Any such delay, search, or questioning isn’t part of the normal “administrative search”, and should be found to be unconstitutional unless there is some reasonable basis for suspicion.

If ICE agents keep on questioning you, ask you to consent to further searches, ask to see your documents, or ask you to remove your mask so they can scan your face with their Mobile Fortify app after the “administrative search” for threats to aviation security is complete, they are on the same legal ground as if they stopped you on a public street. Ask them, “Am I free to leave?” If they say no, ask them, “Why am I being detained?” Don’t let them intimidate you into sticking around at the checkpoint, answering questions, consenting to further searches, or showing other documents.

Be prepared, including by minimizing the data you carry with you, wearing a mask in the airport, and turning your cellphone entirely off before you approach the checkpoint. If you want to record what happens at the checkpoint, use a separate device with no data stored on it. With the possibility of encountering ICE agents at airports even when you are traveling domestically rather than internationally, EFF’s guide for crossing borders with digital devices and this cybersecurity guide for international travelers now also apply to domestic air travel.

If ICE agents at a checkpoint, in an airport, or anywhere else search your paper documents or digital devices without your consent, the Privacy Protection Act may allow you to collect damages. See this explainer for how to assert and preserve your rights under this law.