Texas vs TSA

Texan State Representative David Simpson (R-Longview) has taken an interesting stance on the Transportation Security Administration’s (TSA) ‘enhanced pat downs’ and has recently introduced Texas House Bill 1937 that would make it a criminal offense for TSA Transportation Security Officers (TSO), or anyone for that matter, to touch a person’s genitals, or breasts, during a security pat down without probable cause.

 

Rep. Simpson’s Chief of Staff, Kathi Seay, stated “In the state of Texas, there is a limit of what we think is reasonable to go, and that limit is when you begin to touch the private parts of individuals as they try to travel,” however Rep. Simpson’s Office goes onto say House Bill 1937 would not challenge any Federal Laws, which is confounding.

 

On the surface, Rep. Simpson’s Bill is a champion for the people in standing up to the TSA, but in reality Bill 1937 puts TSA TSO’s at odds with the Federally mandated policy and procedure they are required to adhere to.

 

Should Rep. Simpson’s House Bill 1937 be passed in Texas, under the new law TSA TSOs would face being arrested and charged criminally if the TSO cannot prove probable cause for he enhanced pat downs.   Rep. Simpson’s bill would define probable cause as someone setting off a metal detector or having a ‘blip’ show up on the screen as they pass through an Advanced Imaging Technology scanner or a prohibited item being visible to the TSO.   Texas House Bill 1937 would not allow for enhanced pat downs for passengers who ‘opt out’ of Advancing Imaging Scanners according to Kathi Seay, Rep. Simpson’s Chief of Staff.

 

What would Texas House Bill 1937 potentially mean for TSA TSOs in Texas? It would require TSOs to choose between carrying out their duties, as required by the Department of Homeland Security’s Transportation Security Administration … facing being fired or other ramifications … or potentially face being arrested on criminal charges for carrying out the duties of their job.    The end result for TSA TSOs is a no win situation.

 

Should TSA TSOs be placed in the position House Bill 2937 could put them in, they may miss prohibited items, or weapons, rather than have to potentially deal with being arrested.  The scope of probably cause can be broad, but not under the present definition offered by Rep. Simpson’s office.

 

While Rep. Simpson argues there is no legal statute for the TSA to have its TSOs touch a passengers “genitals, anus and breasts” while carrying out an enhanced pat down … and presently the TSA has been unable to produce its statutory legal standing in what is carried out during an enhanced pat down … there is one looming question. This question is “Why go after the Transportation Security Officers instead of the Transportation Security Administration?”

There are many issues with the TSA’s policy, procedure and effectiveness, but these issues all stem from those in charge of creating policy and procedure, not those tasked with executing it day in and day out at the airport.  The TSA’s issues are systemic to an agency that has virtually no oversight and is reactive rather than proactive.

The TSA needs to change, and Rep. Simpson, as an elected legislator in Texas is in a position to help make those changes by putting political pressure on Texas’ Federal legislators to effect a change in the agency.   Implementing a law that impacts one state, not a nation, that impacts the front line and puts them a position of fear creates further gaps in the agency’s consistency and ability to provide effective aviation security.

 

The TSA’s Transportation Security Officers are an easy target … those seeking to make changes to the TSA and its policy and procedure for passenger screening need to set their sights on the hard targets, not the easy targets.

 

Happy Flying!

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Comments

  1. The TSO’s are part of the bigger problem and this problem (TSA) has many heads which must be severed by multiple means. It is absolutely amazing that supposedly “free” people with the right to freedom from unreasonable search and seizure, have so willingly and meekly ceded their freedom.

    Are there any circumstances in which you see the virtual strip-search going away? What will it take for you to say, “Enough is enough?” When they pat you down before getting on a city bus? How about a taxi stand? Maybe when you attempt to drive on “public” roads? It seems there is no limit.

    Apparently the TSA didn’t boil the frog and neither did you. But each of us allowed the fire to be turned up one degree after another by not speaking out, by not demanding that our natural, unalienable rights be restored and protected.

    “If ye love wealth better than liberty,
    the tranquility of servitude
    better than the animating contest of freedom,
    go home from us in peace.
    We ask not your counsels or your arms.
    Crouch down and lick the hands which feed you.
    May your chains set lightly upon you,
    and may posterity forget that you were our countrymen.”
    ~Samuel Adams

  2. Seems pretty clear to me. If my policy at my company called for me to violate someone’s Fourth Amendment rights, I shouldn’t follow it, either.

    Maybe they should find another job.

  3. Jack,

    You may disagree with how the TSA is circumventing the 4th Amendment , but the fact is they are legally doing it. I have written about it here – http://bit.ly/9r0q12

    I may not agree with the TSA’s policy and procedure either, but the change needs to occur with the legislators, legislator oversight of the TSA and a fundamental change in the TSA’s managment.

    Happy Flying!

    -Fish

  4. Le sigh, another innacurate post used more to inflame readers than provide actual informarion, or as I call it a troll post.

    First, the law if enacted would do nothing. Federal law in this instance would pre-empt. Also, even if it didn’t the officers would be immune from prosecution as federal employees acting in the course of their duties.

    It is doubtful that the law will pass, most bills don’t. This bill hasn’t even had a 2nd reading yet. As far as stimulating discussion about the TSA, it should do that. However, the actual effect will be limited to that.

    Finally, the link to the bill is incorrect. It should be the 82nd session not the 81st.

    I await your twitter onslaught of personal comments with baited breath.

    Happy Flying!
    Colpuck

  5. John,

    You never addressed your comments on the Blue Angels C-130 being very wrong. I apologize for an incorrect link to the bill. That is an error.

    Happy Flying!

    -Fish

  6. Sure, sure. I’ll beleive it when i see it. I’m sure we’ll be dismantling the entire organization in a blissful moment of clarity and unity now that we’re saved from “the guy” committing all the terrorism.

    And certainly you aren’t so naive as to think that the happy cartoon figure you reference in the February article is all that is seen or captured. Just like they weren’t/aren’t able to save any of the images in the current setup…

    Meanwhile, the evidence mounts against your position: http://thehill.com/floor-action/house/159397-obama-floats-plan-to-tax-cars-by-the-mile (How soon before some of that tracking info is used against you for more than tax collection?)

    (I know it says in the article it’s not the president’s view, blah, blah.
    Enron wasn’t committing fraud, this tax isn’t going to happen… right.)

    I’ve read your blog for months now. it’s quite enjoyable and i’ve learned a lot and discovered a new point of view on the airline industry. But these infringements on our rights are intolerable.

    You didn’t answer my question: how much are you willing to abide? What if that was your six-year-old daughter? What if the TSO thought she found something? How close to naked would you let them require your daughter be? Is there no limit?

    How about the other side of the coin? Let’s assume the TSA has it right and there’s no way anyone is bringing anything harmful into the passenger compartment. First of all, it’s beyond farcical that any credible “terrorist” is going to attempt to go through the ticketing/searching/boarding process to get something aboard (especially given the relative ease with which people can get access via the ramp/service areas). Second, are you going to sit there quietly in reflection saying to yourself, “Man, the TSA will learn from my death along with all these other people and do better next time,” when some crazy guy stands up? Or are you and everybody else on the plane going to see to it that the crazy guy is subdued? If getting naked for the TSA isn’t enough, what could possibly be?

    I have to stop; I know I’ve gone on too long already. I’ll end with this: You have rights protected by the Constitution. Not “granted” by it. “Protected.” If you don’t require the government to abide, don’t be surprised when your rights are gone.

    “I became convinced that noncooperation with evil is as much a moral obligation as is cooperation with good.”
    ~MLK

  7. Patriot

    To stay on topic here … the L3 ProVision software is being rolled out slowly through the TSA system. It is in place in other airports outside of the US.

    As for “you aren’t so naive as to think that the happy cartoon figure you reference in the February article is all that is seen or captured. Just like they weren’t/aren’t able to save any of the images in the current setup…”

    … in fact I am sure the TSA AIT scanners will not be capturing other information, because of how they are set up and my conversations on this topic with non-spokesman folks at the TSA. Additionally, the TSA’s AIT scanners cannot save or transmit images in a live airport situation. The images we’ve all seen from TSA AIT scanners are from images created in demo situations in one of three off-site TSA training facilities. I have actually checked out the hardware and backed up my info with known sources and the manufacturers.

    You can read about the TSA scanner hardware here – http://bit.ly/kbauIO. The hubbub about saved images were Dept of Justice scanners, build to different specifications under different contacts for a different agency.

    Happy Flying!

    -Fish

  8. John,

    We are not in agreement. Once the first TSO was arrested to make an example I think we’d see a huge impact.

    Happy Flying!

    -Fish

  9. Flyingfish,

    I do disagree. And I have read your post. So, if they are withing the boundaries of the law, then there should be no reason to worry about that new Texas legislation.

    Carrying a gun onto school property is not a violation of federal law. However, it is a violation of state law here in Virginia, even if my employer tells me to do so. And, if I do it, it doesn’t make my employer guilty, makes me guilty.

    If feeling someone’s junk without probable cause is against the law in Texas, than the TSO should be arrested for it. Just because it is not against federal law doesn’t mean it isn’t against state law.

  10. Steven,

    You read my response right, even if passed federal law would preempt the state law. Even if it didn’t the TSO’s are immune from prosecution.

    Hate to break it to you mate, the conclusion drawn doesn’t follow from the law.

  11. There will probably be a no opt out option. Go through the scanner or don’t travel and if you trigger something the TSA has probable cause.
    I suppose a few months earlier when it all started a lot were saying they will not travel if they have to go through scanners. Their wishes may come true after all.

  12. John,

    Under the Texas House Bill 1937, TSA TSO’s would not be immune from prosecution unless they can prove they operated with probable cause, and this probable cause must fall within a specified scope.

    You might want to read House Bill 1937 and speak with Rep Simpson’s Chief of Staff … that’s what I did to seek clarification.

    Happy Flying!

    -Fish

  13. I don’t think federal law trumps state law here. Laws outline what is ILLEGAL and punishments for committing such acts. If there is no law against something, it is therefore legal.

    As I said before, federal law does not make taking a gun to my child’s elementary school illegal. Therefore, under federal law, as long as I can lawfully possess the gun (and don’t do something with it that would otherwise be a crime), I can take it there.

    However, under Virginia law, simply taking it there is a felony.

    If you’re saying that federal law trumps Virginia law in this case, you are wrong.

    Just because federal law doesn’t specifically make something illegal doesn’t mean that state or local law won’t.

  14. Jack what you are talking about is conflicts of law, where federal law and state law conflict, the federal law will trump.

    The laws you mentioned are not in conflict, just because the USFG has”t made made something impermissible, doesn’t mean the states can’t regulate it.

    Look at the reverse, states have decriminalized some illegal drugs, but because the federal government still has criminal laws on the issues, the drugs are still illegal.

    I don’t really want to comment on guns because there is specific law on point that addresses guns in school zones.

  15. colpuck,

    Federal law does not prevent guns in school zones. That is state law. In fact, Utah allows them. Teachers and private citizens can carry concealed handguns on K12 school property in Utah.

    Laws do not define what is legal, they define what is illegal.

    Let’s look again at gun laws in Virginia. You can openly carry a gun in Virginia. Not because there is a law that says so, which is a common misconception, since people ask what law allows one to carry a handgun openly, there is no such law. The fact is, since there is no law that FORBIDS it, it is, therefore, legal.

    There are all sorts of laws related to driving a motor vehicle. They say that it is “unlawful to operate a motor vehicle…” and then list out conditions that would make it illegal. Under the influence of drugs or alcohol, under the age of sixteen, without a driver’s permit, etc. You are allowed to wear a baseball hat while driving a car because there is no law that says you cannot. Not because there is a law that says you can.

    The TSA has their policies, yes. But I do not believe that their policies are law. Only the legislature can make law. Just because Admin Pistole says that they can touch you inside the pants doesn’t make it legal. It may not be illegal, but doesn’t necessarily make it legal. However, if it *is* illegal, as the case could soon be in Texas, then it is a crime and I believe they should, and could, be prosecuted for doing it.

    But I guess we will see how it plays out.

  16. “even if passed federal law would preempt the state law. Even if it didn’t the TSO’s are immune from prosecution.”

    That is bull shit!!!!!!!! The hole reason for states to have the reason to make laws is to keep the government in check!

    Flying Fish- You sir are playing both sides of the fence in this matter. TSA has nooooooo business in private company airports! The TSA is a guise from the government to strip america from there dignity and writes “in the name security.”

    I live in Texas and this is a hill to die on.

    If you won’t fight for liberty than I will!

    Wake up and decide which side you’re on.

  17. Not to mention that the 4th amendment is the supreme law for the government. Government is not God, and they don’t get to make any rules they want to.

  18. Many things to address here. I’ll start with the original article.

    “Why go after the Transportation Security Officers instead of the Transportation Security Administration?”

    I think you already know: because they cannot and you already know it. A state cannot pass a law nullifying a federal law within that state. So try to don’t be dumb.

    They are [were, at this writing] attempting to go after the objectionable results from the [i]implementation[/i] of that federal law.

    …Implementation, by the way, which EVERY official TSA website, spokesman and news release claims they never, ever do: touch the genitals, anus, etc. So if TSA weenies never touch “junk” or otherwise commits what is known in every legal jurisdiction in the country as “sexual molestation”, why is Texas prohibiting TSA weenies’ junk-touching such a touchy subject for TSA?

    …because TSA lies.

    This law would be no different than Texas passing a law barring federal agents from raping airline passengers during security screenings: if they don’t already do it, then there is no issue. But, because sexual molestation IS part of the duties of TSA weenies, they’re having a cow.

  19. Re: the discussion between “Jack” and “Colpuck” and others …

    Congress gave DHS [the TSA parent department] the statutory authority to “do whatever they wanted”. It’s not really that much of a blank check, but you’d never know it from seeing what they’ve done. TSA has come up with regulatory rules [an administrative dictum “having the weight of law”] guiding them in the commission of their official duties.

    And what we see at the airport is the result of these non-representative rule-making sessions among [mostly] career bureaucrats thoroughly enamored with their own power and authority.

    Even though I have the benefit of hindsight here, the most likely result of this bill is that it will sit on TX law books doing nothing, because TX officials would have no authority to make an arrest of a TSA weenie stick even if they tried to. Sure an agent or two might get pulled off line for a few hours until a federal injunction struck down the arrest, but that would be it. He’d be back in his blue Brown Shirt on his next shift even smugger than before. Where else can a GED have so much uncheckable authority?

    So worrying about what it would mean for the TSA weenie on the beat is a lot of wasted sympathy.

    A possible federal response would be to decertify all TX airports with scheduled flight service – a remote longshot. I know very well that the feds had threatened this already, but whether or not they’d actually do it is another matter – and one that is made rather moot by the fact that TX could not enforce the law anyway.

    But they may, in fact, decertify TX passenger flights.

    This will have a few short-term effects. First it would piss off a whole mess of people trying to go to, or leave, Texas, and they would howl. It would make airlines howl. It would make businesses howl. TX would be seen in the short-term as the petulant teen folding his arms in a pout rather than changing into a nice shirt for dinner with the grandparents.

    It would also have many long-lasting effects. Other states would very likely follow suit BECAUSE of what it did; still others would duck-n-cover behind the perpetual paranoic rationalizations for TSA in the first place: since TSA has bins full of toothpaste and nailfiles it means that we’re safer and we shouldn’t interfere with them.

    But the ultimate result of passing an ineffectual law for the purpose of Making A Grand Statement would be to demostrate that – as with federally-mandated 55mph speed limits in the 70s – eventually the majority is going to get fed up enough that they don’t care. TSA rules would have to change.

    We, as Americans, have a presumption of innocence. Foreigners do not have that same presumption. Americans without pre-screening red flags in this line; Americans WITH pre-screening red flags [and warrants based upon those red flags] and all foreigners in THAT line.

    Why is this so difficult?

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