Author Archives: Michael Froomkin

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.)

It’s a rare day when Eugene Volokh totally misses the point of something (it’s not a rare day when I disagree with him, but that’s different). But in endorsing Kent Scheidegger on National Opt-Out Day, I think we’ve got one.

the idea of scheduling a gum-up-the-works protest for the day before Thanksgiving is beyond despicable. National Opt-Out Day is a call for large numbers of people to opt out of the scanners and elect the longer manual search, all on the same day. It is a cruel and heartless act of vandalism that will seriously hurt other passengers, not the people at whom it is supposedly directed….

This is wrong on almost every front. First, there is absolutely nothing “despicable” about urging people to exercise their legal right to opt-out of being x-rayed. This isn’t even a case where people are being asked to engage in Gandhi/King style non-violent protest and, say, peacefully block a road waiting to be arrested, although if the cause were just I’d be more likely to call it “courageous” rather than “despicable”. Repeat, there is nothing wrong with exercising your legal right to choose one intrusive form of suspicionless government search over a possibly dangerous form of suspicionless government irradiation. Do you trust the TSA people at your airport to properly calibrate the backscatter x-ray machines or the so-called millimeter wave machines? I don’t: Even hospitals get the x-ray dosages wrong with alarming frequency, and I’m betting hospital machines are more closely monitored for health risks than the TSA‘s high-volume machines are.

No, this is a basic Alinsky-style tactic in which people are urged to do that which they are allowed to do, en mass, in order to demonstrate their distaste regarding what they are forced to do (choose between being irradiated or being searched over-intrusively) or not allowed to do (travel freely). There is little point in such protest at six in the morning on a light travel day — the tree may fall in the forest, but no one will notice. The whole point of the exercise is to create pressure for change while acting entirely within the law. Pressure for change is increased if bystanders are co-opted into complaining about the resultant delays or even persuaded to join in the protest.

My general view is that when my fellow citizens are motivated to participate in the political process by any form of organizing around legal action — even stuff I disagree with — this is a good thing for the system. (The hardest case is when the motivation is lies. But then the real problem is the lies and the liars, not the well-intentioned protesters.) Most of the time I feel the same way about non-violent protest too, even if it consists of civil disobedience. Where I draw the line is violence and threats of violence. Of course, if I disagree with protesters, I reserve the right to attempt to point out the error of their ways, but that goes to substance, not tactics.

Reading complaints about the upcoming protest one is left with the strong suspicion that the “despicable” aspect of this protest from the point of view of those who prefer their fellow citizens just shut up and take it is that it is a protest, or rather that it is a protest that just might work. Meanwhile, as the protesters were considerate enough to warn of their plans, plan to be at the airport early.

PS. I’m traveling on Wednesday, so I and my family will be among those inconvenienced at MIA. I’ll be among those opting out if not run through a metal detector, although I would have done so regardless of the existence of the opt-out movement because I’ve had more than a couple of lifetime’s supply of x-rays this year. (See TSA Glow or Grope Policy.)