Fire Sale: TSA Now Offering You Your Civil Liberties For A Fee!

from the freedom-isn't-free dept

You've likely heard the phrase "freedom isn't free" before, probably in the context of honoring our service men and women, paying taxes, voting, or paying for audio clips of the movie Braveheart. It's one of those phrases that's been used so often that it's probably no longer worthwhile. My main complaint about the phrase, other than the generally mouth-breathing blowhards who use it, is it leaves the obvious follow up question unanswered: fine, then how much will freedom cost me? It's an important question we've never really had an answer to...until now.

And that answer is? 85 whole American dollars. No, I didn't get that out of some Hitchhiker's Guide To The Galaxy fan-fiction. I got it from the TSA, who announced an expanded program to touch your ugly bits less if you pay up.

TSA Precheck allows passengers who have been pre-approved to keep on their shoes and belt, not remove their jackets, keep their laptops inside their cases, and not have to remove select liquids and gels from their bags. In other words, besides the line, they can avoid most of the hassles of going through an airport security checkpoint.

Now, to be clear, the TSA's Precheck program has been around for some time, but this is a fairly significant expansion of that program, not to mention a sweet price drop. So all of the scare-mongering we previously heard as justification for searching through our things and our pants could have been swept away with a background check and $85? That almost sounds like a good deal, except then you remember that most airport security is futility as performance art to begin with and paying for civil liberties is the kind of thing that would have made Thomas Jefferson grab a musket and his pantaloons.

And here's another consideration: why am I to believe these background checks and $85 make a person safe to pass through large swaths of the airport security that any normal citizen must endure? A fingerprint and $85 doesn't keep someone from being radicalized at a later date. It doesn't mean all the scary terrorist groups out there can't plant someone on a long-term mission specifically to get approved for this list. There's every bit as much danger in these people as in the rest of us. Which is to say, very little, actually.

All this tells me is that if TSA security is either so poor or so unnecessary that millions of people qualify to bypass most of it, and they're expanding that bypass, maybe the answer is to scale the security theater back instead of handing everyone an $85 bill.

Filed Under: civil liberties, pre-check, safety, security theater, tsa

Court Says TSA Can Lie About Whether Or Not It Has The Information You're Requesting

from the clearly-spelled-out-on-the-brand-new-FUIA-request-forms dept

In theory, the Freedom of Information Act is great. It allows citizens to pursue disclosure from government entities in order to better understand processes or look for malfeasance. In reality, however, it's often incredibly difficult to convince these agencies to actually free up any information.

Whatever isn't delayed indefinitely is redacted heavily. Everything else that doesn't hit these two extremes tends to run into various bureaucratic walls. FOIA request fulfillment is often handed off to whatever part of the agency seems least likely to want the job, either because of its natural antipathy towards the public or because it's chronically understaffed.

It's gotten to the point where people are regularly suing the government to get documents released. No one needs to point out the sheer insanity of a system that expends public money to keep public documents from the public, especially one that is governed by an act meant to make the wall between the public and its servants so thin as to be nearly transparent.

Now, take that insanity and add to it a court decision that basically says it's perfectly fine for government agencies to lie to the public about the availability of requested information. The blogger who runs TSA Out of Our Pants! recently had his FOIA lawsuit against the agency dismissed by a district court. In her decision, Judge Joan A. Lenard came to a conclusion that agreed with the TSA's assertion that it didn't have the records the blogger requested, despite evidence to the contrary.

U.S. District Judge Joan A. Lenard granted the TSA the special privilege of not needing to go that route, rubber-stamping the decision of the TSA and the airport authority to write to me that no CCTV footage of the incident existed when, in fact, it did. This footage is non-classified and its existence is admitted by over a dozen visible camera domes and even signage that the area is being recorded. Beyond that, the TSA regularly releases checkpoint video when it doesn’t show them doing something wrong (for example, here’s CCTV of me beating their body scanners). But if it shows evidence of misconduct? Just go ahead and lie.

Attached below, you'll see his photos of the security cameras. While there may be some periodic dumps of stored footage, the likelihood of just the footage he requested not being available is pretty slim, especially since (as he points out) the TSA has no trouble locating flattering footage of its employees hard at work.

The court does seem to have a point about his second argument -- that releasing unredacted info about the TSA employees involved doesn't really serve the public interest. The TSA argued that releasing the names and faces could "expose them to unnecessary unofficial questioning, harassment, and stigmatization." This argument is a bit of a non-starter, as any public position has a good chance of exposing employees to all of the above. The TSA's second argument, the one the judge agreed with, is a bit more on point.

The TSA also determined that "none of the individuals' personal information would shed light on how TSA performs its statutory duties generally or in the particular instance at issue..." The TSA concluded that "the public interest in having that information disclosed was insufficient to merit disclosure."

This makes more sense even if it does seem a little illogical to pretend the TSA's employees, who work in public areas and interact with many members of the public, should somehow expect this level of privacy to be retroactively applied. However, the overall point is solid: naming names doesn't "shed light" on the issue. The TSA-opposing blogger does make a very good point, however: for all the concern the TSA has for its own members' privacy, it's rather careless with the privacy of others. Earlier this year, the TSA published an unredacted copy of his driver's license in a public court filing. Presumably this was an accident and not some petty form of intimidation.]

Unfortunately for this blogger, along with anyone else filing FOIA requests with government agencies, the judge not only took the TSA's claim that it didn't have the footage at face value in order to dismiss one of the claims, it also gave it tacit permission to permanently lock away any other info it wished to keep undisclosed.

Judge Lenard ruled that once a document is labeled “Sensitive Security Information” (which the TSA does by merely waiving [sic] a magic wand and writing “SSI” on the cover of a document) the U.S. District Court loses its power to review that determination, and the U.S. Court of Appeals is the proper forum. But wait, the Court of Appeals doesn’t evaluate FOIA claims, so now, in order to get a document you want, you must petition 2 courts and pay over $800 in filing fees alone.

And that's how the FOIA works in reality. Limitations, delays, redactions and over-classification. That alone would be enough of an uphill battle without courts pitching in with decisions that further distance requested information from the public.

Filed Under: foia, lying, tsa

Former TSA Head Kip Hawley On The TSA's Misconduct Problems: Fix The Disease, Not The Symptoms

from the would-be-nice-if-someone-NOT-in-a-'former'-position-would-have-some-good dept

Former TSA head Kip Hawley seems to have tons of ideas on how to make the TSA better now that he can no longer make these changes. But it's the thought that counts, I suppose.

Hawley's latest op-ed on improving the TSA takes on the latest GAO report that found 1 in 16 TSA employees was investigated for misconduct last year. What Hawley takes issue with is the report's recommendations, which he feels only touch the surface, rather than attack the root.

[W]hen the Government Accountability Office found increased Transportation Security Administration officer misconduct, it just ratcheted up their unpopularity. The report was jarring and disturbing -- rising numbers of absenteeism, theft and intentional security lapses. Obviously, these are red flags that can't be ignored.

Unfortunately, instead of taking on the issue of stopping the misconduct, GAO's focus was on how TSA "could strengthen oversight of allegations of employee misconduct," the safe issues of process oversight, management of the accusations and data gathering versus digging into the controversial root causes of the actual misconduct.

Hawley's right, in a way. Adding more paperwork to the process doesn't do much more than fill up personnel files and provide job security for those fighting the War on Terror from behind a desk. Still, some improvements should be made in this area as well. Many officials talk a good game about "oversight," but rarely follow through with any sort of effectiveness.

But, the problems at the TSA runs deeper than an additional layer of oversight would have any hope of reaching. The problem is the culture, for lack of a better word.

In today's TSA, too many officers switch off their minds in favor of just finishing out the shift without rocking the boat. This may be the root cause of the GAO-identified misdeeds. TSA needs to have its officers switched-on and motivated.

This isn't just a TSA problem. It can be found in many workplaces, both public and private. The issue here is that TSA agents are entrusted with airport security, something that requires active participation and focus. Motivation comes in many forms, but many entities are content to let "not getting fired" be the primary motivator.

What Hawley is proposing goes against the grain of agency thinking, and that itself is an almost insurmountable hurdle.

Security officers are in the best position to use their experience and training and detect a threat not covered in the Standard Operating Procedure. Al Qaeda knows the rules and designs its attacks to comply with it. To stop attacks, officers thinking on their own needs to be encouraged, not disciplined.

Once officers are allowed to think for themselves, it opens the door for mistakes and criticism. But people can be taught the fundamentals of risk management, which provides a framework for making informed judgments.

This is a good idea, albeit one extremely difficult to implement at this point, hence the agency's preference to focus on surface layer issues. What would ease this transition to a reliance on critical thinking, rather than a reliance on multitudinous, ever-shifting policies, would be to strip back the agency back to the pre-9/11 version of airport security.

Obviously, not everything could be rolled back, but much of it could be streamlined in a way that makes the process less of a chore for both passengers and TSA agents. With much of the mission creep bulldozed, agents would be forced to rely more on critical thinking than on the simplistic yes/no binary of policies. Hawley suggests as much, suggesting improvements like removal of the intrusive pat-down process and drastically cutting the prohibited items list.

Trusting your employees to make the right decisions is extremely hard for most companies, much less government agencies. The TSA may never reach the point that it does, considering it's already hampered by a mindset that views most Americans with suspicion. But if it were able to make this change, the end result would be an optimized security force. Those who can't work without the safety net of "policy" would depart, either voluntarily or otherwise. Those that remained would be active participants in their own job, rather than having to be nothing more than the embodiment of inflexible policies, most of which were written as a reaction to a previous incident, rather than crafted with the future in mind.

But, again, it must be pointed out (as it has been here and other places), if Hawley has so many great ideas on overhauling the TSA, why wasn't any of this implemented during his stint at the controls? Hindsight may offer astounding clarity, but it's of little use to the public on the receiving end of a more than a decade's worth of bad policies.

Filed Under: kip hawley, tsa

Report On TSA Misconduct Finds 1 In 16 Employees Was Investigated Last Year

from the and-that's-just-the-beginning-of-the-bad-news dept

The TSA's security theater is now officially a substandard off-Broadway production. The Government Accountability Office has released a damning report* on the TSA's handling of employee misconduct. Not that the TSA doesn't have its hands full simply writing up the paperwork on ill-behaved employees. From 2010-2012, over 9,600 cases of employee misconduct were reported, with 3,408 of those coming in 2012, an increase of over 700 cases from the previous year.

* Honestly, the GAO doesn't seem to release any other kind of report than "damning." At this point, "all systems nominal" would be the government equivalent of receiving a third Michelin star.

A large percentage of these cases were of the banal, could-happen-at-any-workplace variety.

As with many jobs, the largest group of misconduct offenses involved “Attendance and Leave” issues — “Unexcused or excessive absences or tardiness, absence without leave, failure to follow leave procedures.” This accounted for nearly 1/3 of all investigations between 2010 and 2012.

The more shocking statistic is the number of cases related to the specifics of the job -- screening and security. 1,936 cases -- 20% of the total -- were violations like failing to follow standard operating procedures, bypassing security or sleeping on the job. Another 16% (1,548 cases) weren't any better -- insubordination, ignoring policies and disrespectful conduct.

Remember, these employees are the last line of defense between terrorists and planes, at least according to the narrative that's presented when infants and elementary school kids being detained and invasively searched. (Or when iPads go missing.) The TSA likes to brag about the weapons it's caught, but this data indicates there's still a good chance many weapons are making it through.

Then there's this:

4% -- 426 cases -- fell under this heading: "Inattention to duty resulting in a loss of property or life, careless inspection."

Adding it all up: nearly 40% of the misconduct cases fall under headings that could very conceivably undercut what little actual "security" the dog-and-pony-and-naked-scan show provides. As with any large government agency, most cases were handled with disciplinary triplicate (Letter of Reprimand). Hopefully, those were limited to non-security-breaching first offenses. But temper that hope with this dash of reality -- a mere 17% of violations resulted in termination.

Even these numbers fail to tell the whole story. Things could actually be worse than these stats make it appear. The GAO found the agency's recordkeeping skills to be as lax as its discipline.

Additionally, TSA is criticized for its failure to keep full documentation of misconduct cases, in spite of having a database in which all that info should be kept. GAO blames TSA leadership, which has not issued guidance requiring the recording of all misconduct investigation outcomes.

This brings to light the scariest deficiency of the TSA’s investigation and adjudication process — It lacks “procedures to follow up on completed misconduct investigations to ensure that the agency has identified cases requiring adjudication,” writes GAO.

I realize that private sector businesses usually only fire employees for egregious wrongdoing and that most infractions are "written up" rather than pink slipped. And I realize there are several companies who take a hands-off approach to employee discipline, allowing lousy staffers to stay employed long after they've outlived their usefulness.

But the TSA is no ordinary business. It's stated purpose is to ensure the safety of millions of travelers. It should hold itself to a much higher standard than companies and agencies not charged with protecting the lives of others. Instead, the agency slaps wrists, hands out suspensions and defers any charges from the court of public opinion to the passive-aggressive statements and quasi-apologies of Blogger Bob.

The government wants us to believe in the power of its security theater but the agency's failure to effectively police its own staff undercuts its own narrative.

Filed Under: abuse, misconduct, security, security theater, tsa

TSA Now Searching Valet-Parked Vehicles, Utilizing A Crack Security Team Composed Of... Valets

from the omfg-wtf-tsa dept

Update: The TSA tells us that this claim below was a false report. Instead, they say each airport is responsible for their own security plan, and this was just how this airport conducted some of its security. That said, they also admit that the plans are "approved by the TSA." Still, it's entirely possible that it was wrong to flat out pin this on the TSA -- though it does seem legit to claim that this came about due to the culture of paranoia and suspicion that the TSA seems to encourage.

The TSA apparently has too many Fourth Amendment-violating irons in the fire, what with having to perform random searches in bus stops and on federal highways in addition to the bang-up job they do everyday ensuring that plane-boarding procedures are a fine blend of the ridiculous and the sublimely annoying. Now, the TSA has extended its reach once more, and it's leaning on private individuals to search other private individuals parked cars.

Laurie Iacuzza walked to her waiting car at the Greater Rochester International Airport after returning from a trip and that's when she found it -- a notice saying her car was inspected after she left for her flight. She said, "I was furious. They never mentioned it to me when I booked the valet or when I picked up the car or when I dropped it off."

Iacuzza's car was inspected by valet attendants on orders from the TSA.

Take note of that, America. Your safety can only be guaranteed by a search of valet-parked vehicles, but not by a trained agent. Instead, your valet will do a brief search of your vehicle to ensure there's nothing inside the cabin, trunk or under the hood that looks like a bomb. (Like, for instance, a bundle of wires and some other stuff with a post-it attached saying, "NOT A BOMB.")

There's probably not any Fourth Amendment violating going on here. After all, the crack team of valet/security experts aren't authorized to dig through any of the really "secret" areas.

The report stated that the inspection involves looking into the trunk and engine and a "scan" of the inside of the car, which does not include opening the glove compartment or the console.

Granted, the cabin of the vehicle isn't really "private," but digging around in someone's trunk usually requires a warrant or reasonable suspicion. And I don't think I can stress this enough, but YOUR VALET is performing this warrantless, suspicionless search.

But is that the extent of vehicles being searched at airports?

[W]hy only valet parked cars? That's what News10NBC wanted to ask the TSA director about. We reached him by phone.

Berkeley Brean asked, "Are the cars in the short term lots and long term lots getting searched as well?"

John McCaffery, TSA, said, "No, those vehicles that are in the garage, short term long term parking, even if they carry pretty large amounts of explosives, they would not cause damage to the front of the airport. But for those who use the valet, the car could be there for a half hour or an hour so there is a vulnerability."

Well, that almost seems smart, except that cars waiting for a free valet/human bomb detector aren't the only vehicles lingering in front of airports, as J.D. Tucille at Reason points out.

If the TSA is truly worried about car bombs at the curb, all of those private vehicles and taxis making drop-offs and pickups would seem to be of equal concern to cars left with a valet.

His guess is that the TSA does it because it has "nominal consent," thanks to a sign posted at the valet window that announces valet-parked vehicles will be searched per TSA orders. Except that Iacuzza claims no sign was posted when she dropped off her vehicle and the valet agency refused to state when the sign was actually posted.

I think it goes farther than nominal consent. Whether or not it makes sense to search vehicles parked for more than X minutes in front of the airport (it doesn't -- at least if you're not searching non-valet-parked vehicles) is beside the point. Vehicles left for valets to park present both access and opportunity, two aspects our nation's security agencies never let go to waste.

The valet is going to be inside the vehicle to park it. That's a given. No expectation of privacy in terms of the interior of the vehicle. The attendant can also pop the hood once inside. Accessing the trunk may take a key or may have an interior release, but either way, the attendant has everything he or she needs to do a quick and dirty "search." A car waiting for a valet is a Christmas present for the TSA, which clearly has a jones to search as many forms of transport as possible.

And if you don't consent? Well, I suppose you're stuck parking your own car bomb at short-term or long-term parking where it can detonate in peace.

But don't worry, it could be worse. The DHS has noted that in cases of heightened security alerts, the TSA can randomly search any vehicle it wants to. Pushing this job to valets just sounds like the TSA would rather avoid more confrontations with pissed off travelers. Beyond that though, it just seems incredibly shitty to put untrained valets in potentially dangerous situations. You know, unless no one, not even the TSA, really believes anyone's leaving cars loaded with explosives at valet parking.

Update: J.D. Tucille reports that the TSA has responded to his queries with a noncommittal statement:

"Each airport authority, along with their state and local law enforcement partners, is responsible for securing airport property, including the outer perimeter."

Sounds like cans being kicked down the road. Tucille adds:

Suffice it to say, as you can tell from the official statement emphasizing airport authorities and local agencies, TSA doesn't want to take credit for the car searches at Rochester's airport. Also, I think it's a safe bet that Laurie Iacuzza, and anybody else who left cars with valets at the airport before this story broke, was very likely not properly informed that their vehicles would be searched.

Looks like some improper searches have been occurring at the Greater Rochester International Airport. And if the TSA didn't give the go-ahead for these search-and-park maneuvers, whoever whipped up the sign and the notice left in Iacuzza's vehicle will need to do a bit of explaining.

Filed Under: airports, parked cars, security, security theater, tsa, valet

TSA's Instagram Account Full Of Confiscated Weapons Photos Only Looks Like 'Safety'

from the appearances-still-preferred-to-results dept

News of the TSA's new Instagram account has been pinballing around the net. It's a violent hipster's dream, filled with heavily-filtered photos of confiscated weapons. One might be tempted to buy into the TSA's unspoken narrative that all these confiscations are making flying safer, but Cory Doctorow points out where that thought process hits a logical dead end.

The TSA has launched an Instagram account, showing all the "dangerous items" they steal confiscate from air travellers. The message is clear: we are keeping you safe from in-flight danger.

But what they don't show is all the grand-jury indictments for conspiracy to commit air terrorism that they secured after catching people with these items -- even the people who were packing guns.

That's because no one -- not the TSA, not the DAs, not the DHS -- believe that anyone who tries to board a plane with a dangerous item is actually planning on doing anything bad with them. After all, as New York State chief judge Sol Wachtler said (quoting Tom Wolfe), "a grand jury would 'indict a ham sandwich,' if that's what you wanted." So if there was any question about someone thinking of hurting a plane, you'd expect to see indictments.

This is undeniable. If attempting to carry a weapon onboard is evidence of a true threat, we'd expect to see more would-be fliers headed off to prison, or at least arraigned on terrorism charges. But that's simply not happening. Instead, the weapons are confiscated and they face, at most, a felony charge for attempting to board a plane with a weapon.

This sort of thinking falls right in line with the TSA's liquids policy. Prohibited liquids are tossed into nearby trash receptacles, giving lie to the reasoning that the questionable liquid could be some sort of explosive. Throwing away potential bomb components a few feet from a frequently-crowded TSA checkpoint right on the concourse seems incredibly irresponsible if you truly believe the fluid is dangerous. The fact that this happens several times a day in hundreds of airports across the US proves that not even the TSA agents believe the confiscated liquids pose a threat.

The TSA agent Doctorow spoke with about these seizures said he didn't believe the people who'd had their weapons confiscated posed a threat. But he did come up with a rather novel theory as to why these confiscations took place.

"But," he said, "maybe someone who did want to crash the plane might take the bad thing away from them and attack it."

Doctorow responded that this scenario seemed way too far-fetched to mesh with reality.

"That doesn't sound like a very reliable plan," I said. "If you were a terrorist and that was your plan, you'd have to spend a lot of time in the air waiting for someone to open his laptop bag and show you that he forgot to take his handgun out of it before he boarded."

Based on recent history with would be terrorists, it's more likely the smuggled weapon would be used by passengers against the terrorists, rather than the other way around. This new Instagram account is just the TSA soft-selling its brand of "safety," but the implied narrative doesn't hold up to scrutiny.

Filed Under: confiscated items, instagram, security theater, tsa

Federal Judge None Too Impressed With Government's Defense Of Its 'No Fly' List

from the we-have-several-reasons;-here-are-none-of-them dept

The top secret "No-Fly" list has been problematic since day one. The DHS and FBI apparently believe over 20,000 people are too dangerous to allow to board a plane but not dangerous enough to arrest.

This is the process the government follows to place would-be travelers on the no-fly list.

1. The government places a person on the no-fly list.

That's all there is to it. The list is too "sensitive" to publish and exposing its methodology would apparently result in airliners raining down around us.

If you're a lucky recipient of the "no-fly" designation, here's how you're informed of your new status.

1. Purchase a ticket and attempt to travel.
2. Be rebuffed by TSA personnel.

This process can sometimes be applied with more flexibility.

1. Purchase a roundtrip ticket and fly to a foreign destination.
2. Attempt to return home.
3. Be rebuffed by local customs/security officials.

You won't know you're on The List until the list is triggered, which could happen when you're a few thousand miles from home. And if you think you're boarding the next boat back to the US, think again. The list is also "no-sail," meaning passenger ships are out of the question.

Now, if you're on the list and wish to be removed or, at the very least, informed of why you've been banned from commercial airline travel, there's no reason to panic. The DHS has a resolution process that relies very heavily on "process" and skips the "resolution" completely.

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

One wonders what a letter that answers no questions and explains nothing is supposed to "redress."

Dear Sir/Madam No Fly,

Thank you for expressing an interest in our Traveler Redress Inquiry Program. The Department of Homeland Security works in conjunction with all domestic airports, as well as those in 22 other nations worldwide, in order to provide you with a safe traveling experience. We hope that you will continue to make use of our products and services.

Thank you again for your support.

If you have additional comments or questions, please dial (202) 282-8495.

Sincerely,
The Department of Homeland Security

This decade-long lack of specifics or actual redress has led to the ACLU suing the federal government on the behalf of thirteen no-fly list members.

Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.

The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.

Government attorney Scott Risner addressed these complaints by arguing that air travel is not a "right" but a "convenience."

Risner said placement on the list doesn't stop people from traveling, and stopping people from using one mode of travel doesn't deprive them of their liberty. That's a key question in determining whether the government must ensure due process and one that's at the heart of the constitutionality of being placed on the list.

"We're not suggesting that there's not a convenience in air travel," Risner said. "(But) there's no right to travel without impediments. That's what's happening here.

Risner went so far as to point out that those stranded by sudden inclusion on the no fly list had made it back to the US via alternate forms of travel, thus "proving" a lack of air travel isn't preventing traveling.

Unfortunately for Risner, Judge Anna J. Brown wasn't buying it.

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

She also pointed out that sea and land travel options aren't suitable replacements for flying, especially when time is of the essence and that the government's argument "fails to take into account the realities of modern life."

The DHS and FBI would obviously like everything to proceed the way it has for years, which means convincing the judge that flying isn't a fundamental right. This removes the question of constitutionality, as least as far as flight restrictions go.

The ACLU has gone further, though, declaring the entire system to be screwed up.

"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It's a question of basic fairness," said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. "It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list."

It also points out that issuance of notice and due process are required for much less far-reaching actions.

The ACLU argues that this system violates the Fifth Amendment's command that the government cannot deprive a person of liberty "without due process of law." Courts have ruled that the Constitution requires some kind of notice and hearing for far less severe actions, such as losing state assistance for utility bills or being suspended from school for 10 days.

Judge Brown hasn't said when she'll issue a ruling, but so far she seems less than impressed with the government's arguments. In the meantime, 20,000 people, including the 13 US citizens represented here (four of which are military veterans), are still stuck in War on Terror limbo -- unofficially "detained" in the US by secretive travel restrictions.

Filed Under: dhs, due process, homeland security, legality, no fly list, tsa

Senator Tweets About 'Very Uncomfortable' TSA Pat Down: 'OMG'

from the love-pats dept

A few years ago, we wrote about how many elected officials in Congress get to skip through airport security when they fly -- which might explain why they're not so concerned with the intrusive nature (and lack of effectiveness) of today's security theater at airports. It turns out that this only applies when they travel with law enforcement. At other times, if they're traveling alone, they do, in fact, have to go through the standard TSA process, and it appears that Senator Claire McCaskill was not too happy about her latest experience:

Today in my airport screening, test on my hands was positive. Got private, more aggressive pat down. OMG. #veryuncomfortable

— Claire McCaskill (@clairecmc) March 11, 2013

She later said that this sort of #veryuncomfortable and "OMG" experience is something she's gone through frequently due to the fact that she has a metal knee.

Of course, the real question is whether or not this will actually change anything at all. As some have pointed out, Senator McCaskill has been criticizing such pat downs for years (while also arguing in favor of "full body scanners") and it hasn't changed much. In some ways, it just feels like another piece of the theater act.

Filed Under: claire mccaskill, pat down, security theater, tsa

Man Detained By TSA For Writing 4th Amendment On His Chest Wins 1st Amendment Argument In Court

from the surprised,-but-happy dept

Nearly two years ago, we wrote about how Aaron Tobey was suing the US government after he was detained by the TSA for trying to go through airport security without his shirt on, but with a paraphrased version of the 4th Amendment on his chest: At the time, I figured his case had little chance of succeeding. For reasons that don't make much sense, the courts have given the TSA an amazing amount of deference as long as they keep claiming something along the lines of "but we're all going to die!!!!!!" before defending any and every action to violate our basic privacy rights. However, it turns out I was wrong. Because, you see, the 4th Amendment might not matter any more, but the First Amendment is still important. And the court saw this as a clear attack on his attempt to speak freely:

Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution—he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections—even in an airport.

The ruling hit back on the claims by the TSA that the detention made sense because Tobbey's actions were "bizarre."

Appellants contend that Mr. Tobey has not pled a cognizable First Amendment claim because their actions were "reasonable" given Mr. Tobey’s "bizarre" and "disruptive" conduct....

Even conceding that Mr. Tobey’s behavior was "bizarre," bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his "bizarre" behavior, Appellants’ cannot be said to have acted reasonably. This is especially the case given that the First Amendment protects bizarre behavior

The court also pushes back on the claims of "disruption," noting that the TSA seems to say that removing clothes itself is disruptive, but the court points out that there's an awful lot of clothing removal that happens at TSA checkpoints, so it is not obviously disruptive (though it leaves open the possibility of more evidence of disruptive behavior by Tobey). This was an appeals court panel, overturning a lower court decision against him. It's worth noting that the panel (a standard 3 judge panel) included one dissenter, who bizarrely and ridiculously argued that, not only do you give up your First Amendment rights at the airport, you do so because the TSA needs you to shut up so it can find the real terrorists. I'm not joking:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

How does one become a judge at the appellate level when arguing that you have different free speech rights during airport passenger screening because you shouldn't distract the TSA agents? That's quite an incredible statement.

Either way, the case still has a long way to go. This part just sends it back to the lower court to permit the case to move forward on First Amendment grounds.

Filed Under: 1st amendment, 4th amendment, aaron tobey, detainment, free speech, tsa

TSA Dumps Rapiscan Naked Airport Scanners After Failure To Make Them 'Less Revealing'

from the say-wha...? dept

Lots of folks have noted the ridiculousness of the "Rapiscan" name used by OSI Systems for its x-ray airport security naked scanner -- one of the two popular "new" style scanners used at airports. Over the last few months, I've noticed that I've been seeing fewer and fewer of the Rapiscan machines, and airports that used to have them have been replacing them with the L3 "millimeter-wave" scanners, which have all been outfitted with upgrades so that there's no more "naked" in the naked scanning (and so that operators no longer have to wait for the TSA agent hidden in a dark room with your naked images to give them the "all clear.") Now it turns out that the TSA has ended its contract with OSI and all of the remaining Rapiscan machines will be removed from airports. The main reason is that -- despite having been requested to quite some time ago, OSI failed to make a version of their naked scanner without the nakedness. While L3 was able to do that pretty quickly, apparently it was way too difficult to take the "naked" out of the Rapiscan.

The TSA insists that the decision to dump the Rapiscan has nothing to do with the recent reports and ongoing investigation into the claims that OSI manipulated tests of the Rapiscan machine to pretend that it didn't violate travelers' privacy as much as it did. However, I'm sure that didn't help OSI.

Filed Under: airports, naked scanners, rapiscan, security, tsa
Companies: osi