TSA Puffery

There is something spookily appropriate about having an airport security officer lie to you in order to try to violate your civil rights, even in a relatively small way, when you are en route to a convention about technology and freedom.

This morning, as I was going through a deserted security screening post at MIA, in terminal C, just as I was about to put my luggage through the X-ray, the TSA guy working the outside of security, who had already passed me through, decided to invite back in order that I could step through the “puffer machine,” more formally known as an EDT (explosive detection portal) or ETP (Explosives Trace Portal). I wasn’t marked for a security screening, and I suspect nothing more was going on than the guy was bored and wanted something to do. Knowing that I have the right to refuse (at the cost of being searched by hand), and having plenty of time until my flight, I told him that I didn’t like the look of the machine, and I would rather not. This is where the trouble started.

Rather than warn me that the consequence of failing to consent would be a search, which would have been a legally correct reply, or even decide that I would have to be searched whether I wanted to be or not, which might have been legal too, the guy told me that I had no choice, that I had to go through the machine. I told him that I knew for a fact that this was not true, that I had a choice. He insisted. I asked him to get his supervisor over. He did. I explained the problem.

This supervisor’s reaction was not ideal. His first reaction was to push me on why I didn’t want to go in there. But when it became clear that I knew my rights, he backed down pretty fast and mumbled something about a “training failure” then instructed the line folks to give me the full wanding instead, something to which I said I had no objection. I asked the supervisor to tell the line officer in my presence what the correct rule was, but this he refused to do.

I went through the metal detector, had the full-body wanding experience from a different, and perfectly amiable and correct TSA agent. The second guy, however, refused to answer my question as to who the highest ranking TSA guy in the area was. That problem resolved itself when the local honcho turned up and asked what the problem was.

I explained. He very politely refused to admit that the mid-level supervisor had done anything wrong (“we don’t correct our people in front of the public”), but ultimately agreed that the claim that passengers are required to go through the EFT was not in fact correct. In due course he produced a complaint form, which I filled out, checking the box marked “civil rights” for the nature of my complaint. Oddly, the form did not ask for any personal information about me, so I guess that no one will be calling me to get any further details, much less telling what followup actions result from my complaint.

I travel a fair amount, and until this incident I have always found the TSA people to be polite — even in Miami where that’s far from a given — and to be following the actual regulations rather than making them up; I have some disagreement with the fundamental legality of some of those rules — I think searching everyone is the sort of general search that the Fourth Amendment prohibits — but that of course is not the fault of the line screeners. And in some sense, the system here worked after the initial hiccup: because I was very forceful I was not forced to go through the puffer; I wasn’t wrestled to the ground or handcuffed; I wasn’t even taken to the little room for the full-body search. And the most senior guy seemed pretty sincere when he said he’d make sure his guy got told what to say in the future. But how many people would happen to be as well informed as to the rules and be willing to stand their ground with a flight looming? Very few: and it’s clear these guys are not used to being challenged.

Compared to other devices the TSA would like to unleash on us, the puffer arguably comes off as benign, although prone to false positives (see the comments here). Unlike some other scanners, it doesn’t shoot beams through you or irradiate you. Instead it shoots air at you — a lot of air — and then analyzes the particles that it manages to dislodge from your clothes and body in order to see if there are residues of Bad Things like explosives (or in time if not already, drugs, I would wager) the theory being that if you have been near a Bad Thing in the past, maybe you are up to no good now. I have never been through it, but the experience has been described as unpleasant., and I had no desire to try it. And whether or not I want to try it, I don’t think government agents should be telling us that being puffed is a condition precedent to being allowed to travel when it is not.

In the age of Guantanamo and Abu Grahib this all may seem like very small beer. Nevertheless, I believe in exercising my freedoms while they still exist. I’m all in favor of sensible security measures (e.g. reinforced cockpit doors on aircraft, random security checks that you can’t foresee by the row of sssss’s on your ticket), I am against what Bruce Schneier so rightly calls security theater — basically useless measures implemented in order to fool the public into thinking that the government is Doing Something about terrorism. There are many things we could do to enhance our actual security — checking more containers at our ports, hardening chemical plants against terrorism, beefing up dams and levies — but I object to much of the airport ‘security’ regime which I think is just a waste of money and time. If you add up the cost of the physical infrastructure (reconfiguring airports, buying all the gear), the salaries, and the lost productivity due to extra travel time added by the fear of a long slow line at security, I suspect the US costs itself more on an annual basis than the dollar cost of rebuilding the twin towers. I cannot understand why it is considered anything other than deeply unpatriotic to shoot yourself in the foot on an annual basis.

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26 Responses to TSA Puffery

  1. anon says:

    Other than turning back from the search and not flying, on what legal basis do you claim the right to refuse a particular random airport search yet still be allowed into the terminal? Not challenging you, just curious.

  2. Michael says:

    I do not claim the right to refuse a random search. I claim that the government lacks the power to conduct a general search — to search everyone. The 4th Amendment requires a more particularized suspicion. It is an encumbrance on the right to travel.

    As regards the puffer, the claim is very modest: Homeland Security’s own rules give us the choice whether to go in it or be searched in other ways.

  3. Geoff Neri says:

    Prof. Froomkin – I’m an admirer of your writing, which is why I’d like clarification on your comment above. Why would the puffer be violative of the Fourth Amendment, assuming Homeland Security makes us all walk through it, if the metal detector is not? Also, how is the puffer more an encumbrance on the (fundamental) right to travel than the metal detector? Finally, even if it is, wouldn’t the special needs doctrine apply?

  4. anon says:

    Questions:
    1. Is the puffer, in the context of airports, actually a search? I do not think we have a reasonable expectation of privacy in the molecules that surround our bodies at an airport. That is why fruit-sniffing dogs are often used at customs and cash-sniffing dogs on some outgoing flights. The device is mere passive monitoring, which may then give the state a right to search. Thus I do not think the 4th amendment is implicated as no search is taking place.
    What if the TSA made you walk past a bomb-sniffing dog on the way to the terminal…would that be a search? I think not.
    2. If the TSA does not follow its own rules, is this necessarily a civil rights claim?
    3. Why would you want strangers fondling you with wands as opposed to a mere puff of air?

  5. LACJ says:

    Geoff:

    Your questions are not at all on point and mischaracterize Prof. Froomkin’s statements. The TSA allows individuals to opt out of the puffer; the only issue is whether the TSA follows its own rules. The theoretical questions you raise are interesting but not directly relevant.

    Michael does make this statement, “I think searching everyone is the sort of general search that the Fourth Amendment prohibits”; but that statement does not distinguish between the puffer and the metal detector.

  6. Brett Bellmore says:

    The puffer is a search, because it doesn’t merely inspect things that drift away from you, it hits you with blasts of air to dislodge things that wouldn’t otherwise leave your person. It actively removes things from you.

  7. ruidh says:

    I got stopped by the bomb sniffing/detection machine while returning from China on a trip to adopt my daughter. I had a diaper bag full of packable food — instant oatmeal, infant formula (some of it in conatainers with mostly Chinese labelling), apple-flavored Tang, etc. SInce the bomb machine often false positives on sugars, a lot of this stuff got the wipe down and close inspection by a TSA flunkyu. Apparently he had never heard of oatmeal in packages with dinosaurs printed ont he outside or apple Tang, because he seemed pretty sceptical at our explanations of what they were.

    There’s a big one in the lobby of Penn Station in NYC where I walk by everyday. I wonder how much powdered sugar would set that one off.

  8. Matt says:

    Being married to a foreigner I have special fears about such things, since of course foreigners have less ability to stand up for their rights, in reality even when not legally. It doesn’t take too many TSA agents going wild over nothing for an agrevated felony charge to be filed, I’d guess, and from there it’s all down hill.

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  10. anon says:

    Brett:
    You make an interesting point, but I don’t think current search and siezure law would support the proposition that you have a privacy interest in explosives-related molecules (assuming the machine tests only for the presence of these) about your person, puff or no puff.

    LACJ:
    I disagree, Mr. Neri’s questions are valid as Michael’s response to me implies search and siezure (4th) law. Airports and border crossing points have long been recognized as special situations, and luggage in particular is very low on the privacy interest totem pole. The metal detector analogy is quite valid, and Brett’s viewpoint notwithstanding, I think a metal detector is actually more intrusive than the puffer because the metal detector cannot discriminate between dangerous and benign metal content. It forces a citizen to reveal medical information, such as the presence of a surgical pin or plate, that would otherwise be private. While the puffer may have false positives, supposedly it only reveals the presence of trace dangerous chemicals, not what brand of deodorant you wear. This same reasoning is why dog sniffs usually pass constitutional muster, because the dog doesn’t tell its handler anything more about you (although the dog does learn many things through its nose…) than whether or not you smell like contraband.

    Now, Michael is free to disagree with current search and siezure law…nobody fully understands it nor agrees with it. But I doubt his assertion that the TSA couldn’t force everyone through the puffer, assuming its rules were as such, accurately reflect the law.

    As to the legal implications of the TSA not following its own promulgated regulation, well thats more up his alley to speak authoritatively about than mine. However, I am not so sure that a refusal to go through the puffer without a valid explanation doesn’t begin to raise suspicion that combined with other facts might ultimately lead to a more intrusive (yet constitutional) search.

    I only wonder how many people got delayed in line while Michael tied up the TSA with his lecture 😉

  11. LACJ says:

    anon:

    Its not particularly important, but I stand by my statement. I did not say Geoff’s questions were not valid, they are obviously related to the general issue. However, here is what Geoff asked:

    “…I’d like clarification on your comment above. Why would the puffer be violative of the Fourth Amendment, assuming Homeland Security makes us all walk through it, if the metal detector is not? Also, how is the puffer more an encumbrance on the (fundamental) right to travel than the metal detector?”

    Geoff’s comment clearly indicates his belief that Prof. Froomkin has asserted that (1) the puffer, if required for all passengers, raises 4th Amendment issues that the metal detector does not, and that (2) the puffer is more of an encumbrance than the metal detector. I merely pointed out that neither assertion was made or even implied.

  12. Joaquim Barbera says:

    I’m aware that a different set of rules apply, but since this other case also occurred recently in a Floridian airport, and it also involves security measures resulting form the War on Terror, I believe mentioning it in this thread could be of interest:

    http://www.sptimes.com/2006/04/20/Opinion/Not_helping_US_image.shtml

  13. Paul Gowder says:

    I think some airports are doing it with everyone. Last time I flew through the Houston (??) airport (I believe that’s the one, but it was a connection so I’m not completely sure I remember accurately), everyone in line was going through the “puffer.” I don’t know if that was a pilot thing or if it’s regular.

    It’s not so unpleasant, but it creates massive delays. Infuriating, on a short connection. Those things take like 30 seconds to process while you’re standing in the machine cooling your heels. Multiply that by a whole security line and it gets obnoxious.. (And I can confirm based on my own research about 7 years ago for a project that ion mobility spectrometry have a heaping pile of false positives, or at least did so back then.)

  14. Geoff Neri says:

    LACJ:

    Allow me to clarify my request for clarification. Prof. Froomkin seems to be implying that the puffer, if used to conduct a general search, without particularized suspicion, would violate the Fourth Amendment (“I claim that the government lacks the power to conduct a general search — to search everyone. The 4th Amendment requires a more particularized suspicion. It is an encumbrance on the right to travel.”). We may argue that it should, but based on existing precedent I don’t believe it does. I’m sympathetic to Prof. Froomkin’s position, but as a practicing lawyer I think it’s important to understand existing case law and the way that case law would control a particular issue.

    Yes, the Court has settled upon the general rule that a nonconsensual search is unconstitutional if it is not authorized by a valid warrant or some level of individualized suspicion. However, under the special needs doctrine, the Court has carved out a limited number of exceptions to this general rule and has allowed some searches in the absence of either a warrant or individualized suspicion. See New Jersey v. T.L.O. (“[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”)

    Subsequent to TL.O., the Court has repeatedly applied the special needs doctrine, finding special needs to exist in situations as diverse as: searches of a government employee’s office, administrative inspections of an automobile salvage yard, searches of a probationer’s apartment upon the belief that there might be weapons on the premises. More to the point, the DC circuit has suggested that the special needs exception applies to warrantless surveillance under FISA. See In re: Sealed Case No. 02-001

    In elaborating the special needs doctrine, the Court has noted that the government’s interests need not be compelling, rather, they must be important enough “to justify the particular search at hand”, National Treasury Employees Union v. Von Raab. In addition, the government interest must be something “beyond the normal need for law enforcement”. In the context of terrorism, the DC Circuit has stated FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” No doubt the same rationale would prove persuasive to the D.C. Circuit and, counting heads, the current Supreme Court.

  15. Michael says:

    I think the ‘special needs’ doctrine is an unprincipled doctrine that has no obvious stopping point, and is in violation of the 4th Amendment. Even under the doctrine as it exists, I submit that the volume and regularity of air travel, and its importance to the right to travel, mean that the special needs doctrine has no application — it’s just not a ‘special’ circumstance; it’s very “normal”. Same thing with ‘protection against terrorism’ which is so generalizable to all life as to wholly eat the 4th amendment.

    I am not sure that Justice Kennedy, who I take to be the swing vote, would accept a broad special needs doctrine. And even Scalia might blink. I will give you Thomas, Alito, and Roberts. But I haven’t made an in-depth study of their 4th amendment voting records, so I am ready to be corrected.

  16. pulaski says:

    In response to those who say a metal detector cannot discriminate between benign and malicious content while a “puffer” can: reloading ammunition is legal.

  17. Geoff Neri says:

    Prof. Froomkin – “Unprincipled”, “no stopping point”, i.e., slippery slope. Hmm… You’re beginning to sound an awful lot like my old Admin Law professor, Judge Silberman (who, by the way, was on the three judge panel that decided In re Sealed Case, and is a conservative stalwart).

    Again, I must reiterate that I am an admirer of your work, but I don’t think a mere assertion that a doctrine is “unprincipled” qualifies as a substantive critique. The word “unprincipled”, like “activist”, is a mere epithet that ideologues across the political spectrum hurl at their opponents for rhetorical flair.

    In what area of the law do we not have to draw lines and balance competing interests, such that the description “unprincipled” could be appplied? One of the great virtues of Anglo-American jurisprudence is that it is flexible and pragmatic, not rigid and dogmatic. Furthermore, isn’t the Constitution itself a magnificent exercise in balancing interests?

    Perhaps you believe that the Supreme Court has struck the wrong balance in the case of the special needs doctrine. I would like to hear such an argument. Do you really believe that our privacy interest in being free from the minimal intrusion we might experience by being blown with small puffs of air for approximately one or two seconds outweighs the very real threat of an individual smuggling explosives onto a plane (see, e.g., Richard Reid). I realize that, unfortunately, this administration has cried wolf far too many times, raising the specter of terrorism reflexively to justify otherwise unconstitutional power grabs, but I think this is not such a case.

  18. Thomas says:

    Here’s a realist-style prediction: the Court won’t adopt a reading of the 4th amendment which would prevent them from searching those entering the Court, as Michael’s reading would. (See, e.g., City of Indianapolish v. Edmond: “Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute.”)

  19. Michael says:

    I do agree with Thomas’s realist prediction as to courthouses. That alone doesn’t make it right. That said, although I haven’t studied it, I suspect that it is possible to be a fairly strong Bill of Rights absolutist — follow Justice Black on the First Amendment, read the 4th Amendment to have real content — and still permit searches for entry to key government buildings under the proprietary principle. And I’m certain that the border searches are distinguishable, following a long long line of precedents.

    I strongly suspect that both logic and experience demonstrate that the special needs doctrine was a mistake in theory and as applied. I do recognize that the 4th Amendment bans only unreasonable searches. I also accept that there are reasonable warrantless searches — think, for example, of patdowns incident to arrest. But I don’t accept that the 4th amendment we have allows the government to reasonably subject a huge swath of the population to routine warrantless search, even if it only delays them for 30 or 40 seconds (not two, by the way). The danger of suicide bombers is nonzero, but in the grand scheme of things it is quite small. Once we have strong cockpit doors, there’s no way to use a bomb to take control of the plane. You may be able to divert it, but not to crash it, since you cannot get to the pilot. And while we are puffing you, should we test for drugs? Intoxication? Communicable diseases? Why not?

    And why, given that they can no longer get to the pilots, is a bomber on a plane so much more dangerous than one on a train or bus? Why not search people as they walk down the street?

    You get the drift.

  20. Geoff Neri says:

    Good observation Thomas. Prof. Froomkin, your inconvenience at the airport has certainly generated an illuminating discussion. I’m wondering if you had a similar experience coming back from your conference here in Washington. I’ve walked through the puffer at Reagan National and I only recall it taking a second or two. I read the thread about the difference in the two versions of the machine. It seems to me that a lot may ride on how the contraption actually works – one might argue that the less intrusive version is more like a K9 sniff.

  21. Adam says:

    Motivated by this discussion, I actually tried getting to the Boston airport puffer, so I could report. Unfortunately, the GE machine that’s there was both roped off and powered off.

  22. allan says:

    Assume that searches before entering a public building, i.e., a courthouse are legal. You can refused to be searched, but the courthouse personnel can refuse you entry.

    Next, assume you are wrongfully charged with a crime and must appear in court.

    What if you refused to be searched? Can you then be charged with failure to appear? If that is the case, the search appears to be coerced.

    Think of other situations where one is under orders to be somewhere. What if a soldier with orders to go to Iraq and a commercial airline ticket refuses to be searched at the security gate?

  23. Allan ass, “Assume that searches before entering a public building, i.e., a courthouse are legal…. Next, assume you are wrongfully charged with a crime and must appear in court.”

    I’ve been in exactly this situation. I can say with legal certainty that I was wrongfully charged, since not only were the charges dismissed but the judge entered a finding of actual innocemce and ordered all record of the arrest expunged. At the metal detector at the entrance to the courthouse, a guard asked me to open my bag. I asked if he was making a request or giving me an order. He didn’t understand the question, or pretended not to understand, and repeated his statement. I said, “I am entering this building in response to a court order to appear. If you preevent me from entering, you will be interfering with my attempt to comply with this order. I do not consent to any search, or to open my bag. I will not interfere with any search, but if you search my bag, it will be a nonconsensual search, and you will have to open it yourself.” He wouldn’t open my bag, and I wasn’t prepared to find out what would happen if I tried to go on in without his permission. We were at an impasse until my attorney arrived, told the guard I was with him, and escorted me in without having to open my bag — as at many courthouses, attorneys (and often their staff — since I’m white and middle-class, the guard may have mistaken me for a paralegal) are admitted without search. I don’t know what would have happened if I were unrepresented, or my attorney hadn’t been going into the courthouse at the same time.

  24. It is silly to think that the Puffer or any other no-touch security measure violates the 4th ammendment. But should people want to press the point, air travel isn’t a right, and if you want to indulge you may be inconvenienced.

    There are several other technologies out there that are *less* invasive. I am an investor in Defendertech’s Protadas system, which detects liquid explosives on the body quickly and remotely.

    Martin Tibbitts
    http://www.defendertech.com

  25. Michael says:

    The Supreme Court disagrees with you about sense enhanced searches and the Fourth Amendment, see Kyllo v. United States, 533 U.S. 27 (2001) — whether it agrees about air travel remains to be seen (but note that the question is probably one about government-enforced discrimination, not right to travel per se).

  26. Rich Motts says:

    Just because you buy a ticket for an airplane ride it doesn’t mean they have to let you ride! They can refund you money and tell you to walk!

    What are you afraid they’ll find by smelling you? BO? Drugs? or are you one of those that intends to blow a plane up?

    Remember, if you have ever flown even once, you are still here because so many people made sure the plane and everything involved was safe. The plane’s mechanical condition, the amount of fuel, the weather, the area of take-off and landing, the pilot and instrumentation – everything involved. Now they just want to make sure the people riding on it are safe too.

    You’ll just have to ship your illegal drugs some other way – why not swallow all of them before you go?

    —–

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