Category Archives: Law: Right to Travel

A Georgian Grandmother’s Take on the TSA

A student I know writes,

My grandmother and I have a unique relationship. We talk about the usual family gossip, but we really get into it when we talk about politics. Why is this unique? Because my grandmother is in her eighties and she lives in Tbilisi, Georgia. Having spent my formative years in the U.S., I make sure to tell her of the liberties that I take for granted that she did not have for the majority of her life in Communist Russia. I tell her that I could support any candidate running for office without fear of retribution from the sitting party (or can I?). Unlike her, I don’t have to fear being audited by the KGB if I support the opposing party (or do I?) (OK maybe I am safe from the KGB). Unlike her, I could become a journalist and try to uncover the truth without fear of being investigated for criminal conspiracy (or can I?). Unlike her, I could rely on my government to tell me the truth about what is going on in the world (or can I?). Unlike her, I am protected by the Constitution to say what I want without being punished (or am I?).

My grandmother does not like being told that she is missing out on these basic liberties by not being in the U.S. (or is she?). Recently, my grandmother visited us in the U.S., and then she visited some family in Israel. She told me about her experience at JFK International Airport. She told me how she was patted down. She told me how she had to stand for what felt like hours (Georgians tend to exaggerate) waiting for the honor to be patted down. She told me how strangers rummaged through her bags. She told me how the TSA threw out her water bottle and how she had to buy another one inside the airport for $3 so she can take her medicine. She told me how rude the TSA agents were to her. She told me how hard it was for her to remove her shoes and then she told me how frustrated she was when she found out she did not have to. I tried to tell her that this is the price we all pay to make sure we have a safe society.

She knew I was going to say that. That’s when she told me about her experience flying to the U.S. and flying from Israel back home. She told me that she was treated with respect and sensitivity. She told me that there were no pat downs, no waiting, no shoe drama, no bag drama, and no “administrative” searches and seizures. I told her it sounds like the security at those airports is lacking. She was not having it. She said there have been no terrorist attacks from those airports and she did research (research-really?) and in fact those airports are safer than their U.S. counterparts. I was stumbling. She was just getting warmed up. Then she went for the jugular. She asked me, oh by the way, whose society is really free?

I realized that in Russia the government knows what you have before you get to the airport so there is no reason for the authorities to scrutinize low-risk passengers. In Israel, law enforcement could track people suspected of terrorism and some form of profiling is prevalent at Ben-Gurion Airport so again there is no need to burden the elderly. However, the U.S. does not use as much profiling nor can the authorities track people’s movements without some kind of judicial oversight. This is the upshot of the discrepancy between how my grandmother was treated at the three airports. My grandmother said she agreed with me and she added that she does not mind being tracked or profiled as long as she can have her dignity and her water while she is traveling.

I asked her if I could write about our exchange. She said sure, but she warned me against using my name. (She said I could use hers, but it’s probably not a good idea because that’s too easy to track. I better listen to her — she has more experience with this stuff.)

Myself, I’d rather undergo some difficulties at the airport rather than live in a surveillance state, but this either goes to show that tastes vary, or that tastes in what counts as freedom are to some extent defined by culture and expectations. Of course, there’s always the possibility that we may end up with both the surveillance and the TSA.

Previously: I write about my grandmother — names and all — in “Rose Burawoy, Political Scientist”.

Posted in Civil Liberties, Law: Right to Travel | 6 Comments

Schneier on Security: Harms of Post-9/11 Airline Security

Bruce Scheier on Harms of Post-9/11 Airline Security:

[TSA Administrator] Kip Hawley doesn’t argue with the specifics of my criticisms, but instead provides anecdotes and asks us to trust that airport security—and the Transportation Security Administration (TSA) in particular—knows what it’s doing.

He wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. He wants us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. He wants us to trust the no-fly list: 21,000 people so dangerous they’re not allowed to fly, yet so innocent they can’t be arrested. He wants us to trust that the deployment of expensive full-body scanners has nothing to do with the fact that the former secretary of homeland security, Michael Chertoff, lobbies for one of the companies that makes them. He wants us to trust that there’s a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that’s really a flashlight with a long cone on top (Dallas/Fort Worth).

Plus stuff like this,

In 2004, the average extra waiting time due to TSA procedures was 19.5 minutes per person. That’s a total economic loss—in –America—of $10 billion per year, more than the TSA’s entire budget. The increased automobile deaths due to people deciding to drive instead of fly is 500 per year. Both of these numbers are for America only, and by themselves demonstrate that post-9/11 airport security has done more harm than good.

The current TSA measures create an even greater harm: loss of liberty. Airports are effectively rights-free zones.

Yes, read the whole thing.

Sadly, it seems hard to imagine that any President or Congress will have the guts to cut the TSA’s program of anti-security theater, for fear that an airplane will blow up and they’ll get the blame. The dysfunctions of the political system strike again.

Posted in Law: Right to Travel | Leave a comment

Domesticating Airport Dragnet Searches

Two articles examining the legality of the airport screening regime so many have come to take for granted appear in the online supplement to The Northwestern University Law Review: Revisiting “Special Needs” Theory Via Airport Searches by Professor Alexander Reinert of Cardozo and The Bin Laden Exception, by Professor Erik Luna of Washington and Lee.

The Reinert article treats the judicial acceptance of the airport screening regime as a foregone conclusion, and labors to limit the fallout:

[T]he TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles than the FAA’s initial airport screening procedures. Therefore, precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime. Specifically, I argue here that if courts are to give the TSA’s new search regime constitutional approval, it must be limited to its justifying purpose—safe air travel—and it must be grounded in the special needs exception to warrantless and suspicionless searches. Making explicit what has been implicitly required by most of the Supreme Court’s special needs jurisprudence, I propose a special exclusionary rule for searches like those conducted by the TSA that will best limit the ex post utility of such searches to their ex ante justifications. Under my proposal, the use of evidence discovered as a result of mass suspicionless searches like the TSA’s screenings should be limited to prosecutions for offenses that relate to the asserted justifications for the search regime. This link between justification and permissible use is one novel way to limit the reach of a special needs justification for these airport searches. In a way, then, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.

The Luna response is even more pessimistic about the vitality of the incredible shrinking 4th Amendment:

In effect, TSA agents may now search any and all items in one’s baggage, given the sweeping claim that explosives “may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” Moreover, evidence of an agent’s impermissible motive—for instance, searching a bag for contraband wholly unrelated to terrorist threats—will be ignored so long as the TSA’s “programmatic motive” is airline safety. …

In the end, I just wish everyone would be a bit more honest. What is at play here is not a previously recognized exception to the Fourth Amendment—consent, good faith, special needs, and so on—but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks. Let’s call it what it is: The Bin Laden Exception to the Constitution. If nothing else, putting a name to the systematic evasion of the nation’s most hallowed legal text might force some to face their own irrationality and question the wisdom of bending the Constitution, as well as spilling vast amounts of blood and treasure, all for the sake of one evil man and his outlaw organization.

Spotted via Pogo Was Right, On the Colloquy: The Fourth Amendment and Airport Screening Issues.

Posted in Law: Criminal Law, Law: Right to Travel | 1 Comment

Humorless Border Police. Where Have I Seen That Before?

Twitter news: US bars friends over Twitter joke. Spotted via Slashdot.

US special agents monitoring Twitter spotted Leigh Van Bryan’s messages weeks before he left for a holiday in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged up Leigh as a potential threat when he posted a Twitter message to his pals ahead of his trip to Hollywood.

It read: “Free this week, for quick gossip/prep before I go and destroy America”.

He was also quizzed about another tweet which quoted hit US comedy Family Guy and said: “3 weeks today, we’re totally in LA p*ssing people off on Hollywood Blvd and diggin’ Marilyn Monroe up!”

Agents even checked the pair’s cases for SPADES and suspected that Emily was to act as “lookout” while Leigh raided the film beauty’s tomb.

Serious note: I suppose once seized of the information about the first Tweet the decision to detain and question cannot be said to be absurd. The decision to jail and deport on the other hand does seem quite absurd.

And why are we spending the money to monitor all future UK tourists’ tweets? Obviously because we know that terrorists have a propensity to announce their plans on Twitter. In English. Stands to reason, really, given that Twitter is (or was) a tool used by revolutionaries….

Related: DHS’s Publicly Available Social Media Monitoring and Situational Awareness Initiative Update (Jan. 6, 2011)

Image from Negotiation is Over.

Posted in Civil Liberties, Law: Right to Travel | 1 Comment

News of the Weird

A woman is suing JetBlue for making her prove to them that she was wearing underwear.

The strange thing about this story is that it didn’t happen in Florida.

Oh wait. It was a flight from LaGuardia to Florida. So that’s OK then.

Posted in Law: Right to Travel | Leave a comment

Funny Underwear

4thAmendmentWear via SDFla Blog.

As it happens, I’m going flying tomorrow, but with less amusing underwear. Blogging may be sparse next week — it’s Spring Break, and I’ll be…well, not broken I hope.

Posted in Law: Right to Travel | 3 Comments

Challenging to the TSA Glow or Grope Policy On Returning to the USA

Matt Kernan was entering the USA, at Cincinnati/Northern Kentucky International Airport. He didn't have a connecting flight — he was heading home. The TSA wanted to subject him, as it apparently does all incoming passengers, to its glow or grope policy.

The problem, from the TSA's point of view, is that the arguably exigent circumstances that may exist for subjecting passengers to an intrusive suspicionless search when they are about to board an airplane — the fear of terrorist attack on a plane — do not exist when people are trying to leave the airport.

Mr. Kerman had four things many passengers do not have:

  • He had time.
  • He had, it appears, the iron self-control needed to remain polite at all times.
  • He had a recording device (voice only).
  • He had a good understanding of his rights.

Read all about it at the misnamed You Don't Need to See His Identification — misnamed, because in practice they do need to see your ID to establish that you are a citizen with a right to reenter the country. (Yes, there are rare cases of people establishing their right to re-enter by witness testimony when they have lost their passports, but that's not something you want to get into.)

To the lawyer's eye there are a few critical points here. The first is that, once you have successfully identified yourself as a US citizen and undergone the ordinary customs process to demonstrate an absence of contraband, you have an absolute legal right to re-enter the US. Court decisions are very clear about this.

The second point is that Mr. Kernan was very careful at all times to say he would comply with any order, but would not accede to invasive searches unless he was told he was being required to submit to it. This is the thing that no one wanted to go on the record as saying, most probably because the TSA's legal position on this is much, much shakier than for passengers attempting to board aircraft. Mr. Kernan also understood that asking a police officer if he was being detained or was free to go is the magic phrase which invokes your Constitutional rights.

I can't emphasize enough that anyone trying to do this better have a lot of time — it took Mr. Kernan 2.5 hours to get through the checkpoint — and especially the iron self-control to remain polite while dealing with officious and occasionally intimidating officialdom. There is a real chance of arrest; if your behavior was perfect it would, I think, be a false arrest, but absent a tape the chances of proving you were not causing a disturbance, or interference with an officer's pursuit of his duty, would not be good enough to make me happy. Mr. Kernan had the good fortune to engage with well-trained and and sensible local police officers and TSA officials who were not in the end vindictive. Your mileage may vary.

And there's the rub: the constitutional right to enter the country freely is made so risky and difficult to exercise as to be rendered almost meaningless.

(Spotted via boingboing's Traveller re-enters USA without passing through a pornoscanner or having his genitals touched.)

Posted in Law: Right to Travel | 5 Comments