The Legality Of The TSA’s ‘Enhanced Pat Down’ Authority

Since the Transportation Security Administration’s (TSA) implemented its  ‘enhanced pat down’ screening procedures in late 2010 the legality of the agency’s authority to execute enhanced pat downs has been consistently called into question.

 

While the TSA has the legal authority to carry out administrative searches without probable cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without probable cause has remained.

 

In May 2011 I began requesting that the TSA provide legal statues, laws or rulings that definitively laid out the agency’s legal standing to perform ‘enhanced pat downs.’  After nearly two dozen correspondences with the TSA’s Office of Strategic Communications, Deputy Assistant Administrator Sterling PayneAdministrator John Pistole (who holds a law degree from the Indiana University School of Law) and the agency’s Chief Counsel Francine Kerner, no one has been able to provide any legal evidence of the agency’s authority to carry out the current physically invasive administrative searches without probable cause.

 

Over the course of my correspondence with the TSA regarding the legality enhanced pat downs, spanning more than thee months, I was repeatedly sent links to Public Law 107-71, the Aviation Transportation and Security Act (ATSA).  The TSA frequently uses ATSA to justify its actions, however while ATSA authorizes the creation of the TSA, and details many aspects of agency’s scope, duties and implementation, it in no way addresses the policies or procedures for the TSA to physically carry out individual passenger screening.

 

The basics of the TSA’s responsibility for passenger screening can be interpreted under Title I – Aviation Security, ‘§ 114. Transportation Security Administration, Section (e) SCREENING OPERATIONS.—The Under Secretary shall—

‘‘(6) on a day-to-day basis, manage and provide operational guidance to the field security resources of the Administration, including Federal Security Managers as provided by section 44933;

‘‘(7) enforce security-related regulations and requirements;

‘‘(8) identify and undertake research and development activities necessary to enhance transportation security;

‘‘(9) inspect, maintain, and test security facilities, equipment, and systems;

‘‘(15) carry out such other duties, and exercise such other powers, relating to transportation security as the Under Secretary considers appropriate, to the extent authorized by law.

 

One correspondence with the TSA cited this section of ATSA:

SEC. 110. SCREENING.

 (b) PASSENGERS AND PROPERTY.—Section 44901 of title 49, United States Code, is amended— (1) by redesignating subsection (c) as subsection (h); and (2) by striking subsections (a) and (b) and inserting the

following:

‘‘(a) IN GENERAL.—The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. In the case of flights and flight segments originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code), except as otherwise provided in section 44919 or 44920 and except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match programs.

‘‘(b) SUPERVISION OF SCREENING.—All screening of passengers and property at airports in the United States where screening is required under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration

 

This section of ATSA, found on Page 19 of the 51 page law, in no way addresses the agency’s legal authority to carry out enhanced pat downs.   The TSA has more than once referenced the 9th Circuit Court’s 1973 ruling of U.S. vs Davis, 482 F.2d 893, 908. The 9th Circuit Court’s U.S. vs Davis ruling states

 

“noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” and  “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

 

While the TSA may interpret U.S. vs Davis to grant the agency unlimited powers to execute enhanced pat downs, the law is lacking the legal wording that addresses the scope of what is acceptable under “the essential administrative purpose.”  The agency is also unable to provide significant documentation that enhanced pat downs, above and beyond less invasive pat downs, serve “the essential administrative purpose.”

 

To date, the TSA’s Chief Counsel has been unable to respond to my enquiries citing any laws, statutes or rulings that address the scope of the agency’s powers in physically executing administrative searches.  As the agency’s senior most attorney, it is troubling that Ms. Kerner is unable to provide the legal ground her agency needs to carry out the policy and procedure it executes daily across the United States.

 

The TSA plays an important in role in the national security of the United States, carrying out not only passenger screening but also overseeing numerous other essential security aspects not seen by the traveling public, however the agency’s current security procedures leave the agency in legal jeopardy.

 

How long can the elected leaders in the U.S. House and Senate allow the Transportation Security Administration to operate in a manner outside the current laws in the in the United States?   Every government agency needs to know its limits, some agencies are allowed mission creep, as the TSA has demonstrated numerous times, but operating outside the current legal power of the agency goes beyond mission creep.

 

Everyone answers to someone … yet somehow the TSA continually answers to no one.

 

Happy Flying!

@flyingwithfish

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Comments

  1. It seems that all it would take to make it perfectly legal would be to include some kind of fine print that commits you to letting the TSA do whatever they want when you buy an airline ticket. I happen to believe that most of the TSA stuff is pure theater, but we don’t have to fly and by making the decision to buy a ticket we are agreeing to all sorts of stuff. It would appear Congress is unwilling to address the issue so until they do it’s tilting at windmills.

  2. Please keep pressing this. I don’t understand why the ACLU isn’t protesting this clear violation.

  3. We don’t have to fly domestically, but how else do you propose traveling outside of North America? Boats? The regulation above covers “…flights and flight segments originating in the United States…” so even overseas flights originating from the US are subject to this, and if you want or need to travel to destinations outside the US, there really is no other way.

  4. Here are some comments.

    1) The courts will allow administrative searches. Congress has given the TSA the authority to conduct a security administrative search at airports. However, the HOW to conduct a search is not specifically spelled out.

    There is no Federal law DEFINING strip searches and touching sexual organs as legal acts in any specific context. Therefore, the states should be able to EXCLUDE strip searches and sexual organs without reasonable suspicion [probably cause is for law enforcement] at the least for any administrative search. This would not violate an existing Federal law. This would not be challenging the right to perform airport security administrative searches.

    2) US vs DAVIS, conducted in an Appeals Court and NOT the Supreme Court, only was aware of magnetometer technology and tried to limit the search to only “necessary to the minimum extent necessary.” However, the same ruling said that, like in the CAMARA case, any such search must meet the 4th amendment which can only be judged by “the reasonableness” of the search under the 4th amendment.

    What is untested in court is strip searches FOR DOMESTIC TRAVEL, whether physical or electronically performed as part of an administrative search. An Appeals Court has ruled that strip searches can be done for any reason on anyone entering our country (NON-DOMESTIC TRAVEL – i.e BORDERS), including American citizens. Border security court cases, including at the Supreme Court level, seem to allow anything for any reason. Good-bye 4th amendment at the border.

    What is also untested is touching the sexual organs of US Citizens, including babies, children, adults, and 95-year old cancer victims. The TSA currently assumes it can do this since the administrative “need” is to find working, non-metallic bombs carried by suicidal airline passengers.

    I would argue that strip searches and sexual organ examination is not reasonable for ANY administrative search without least a reasonable suspicion, or I would argue that only law enforcement can conduct those under the standards which police officers may engage in strip searches and sexual organ touching. But even giving this to non-law enforcement with a less standard than probable cause, you should insist on reasonable suspicion.

    3) In US vs Davis, the court said there was a “clear danger” if airport screeenings were not performed. However, they were referencing the number of hijackings as being an unacceptable risk and danger for the airlines. Essentially, in 1969, there were 4 hijackings A MONTH on US Domestic flights.

    Contrast that to the last 48 years of US Domestic flights going back to 1963. There have been ZERO successful non-metallic bombings by suicidal airline passengers. In short, there is no significant security threat. I would say even if there was, the US Supreme Court has limited law enforcement from certain searches DESPITE the fact they can show much more severe and ACTUAL threats. There is no reason to have non-law enforcement government strangers getting a power that makes the 4th amendment moot. There is nothing in the 4th amendment that says “…unless you are scared silly.”

    The reality is the Congress can restrict this when they shouldn’t need to, the states do have valid legal options that don’t challenge Federal authority, the President could tell his agency to stop this nonsense, or the Supreme Court can rule on it.

    The other reality is that Americans who accept strip searches (no matter how ‘convenient’) and abusing dying 95-year old cancer victims and teenage girls – just to feel safe from an event that has not happened in nearly half a century – are the one’s killing are freedoms and supporting terrorists’ end goals.

  5. @Marius. I would disagree with your premise. The Federal Code of Regulations says…

    Under 49 U.S.C. § 40103 : US Code – Section 40103: Sovereignty and use of airspace:
    (a) Sovereignty and Public Right of Transit. – (1) The United
    States Government has exclusive sovereignty of airspace of the
    United States.
    (2) A citizen of the United States has a public right of transit
    through the navigable airspace

    This was reaffirmed in the court case in Justice Douglas remarks in Kent vs Dulles: Douglas saw in the Fifth Amendment’s guarantee that “No person shall be . . . deprived of life, liberty, or property, without due process of law,” a right to travel:

    “The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

    The real issue is whether the government is violating the Constitution in airport searches. Someone else accepting these strip searches and genital touching acts does not invalidate the rights of others to their constitutional rights. I may be fearful of my life when shopping at a grocery store in Phoenix because of the documented attacks and killings that may occur (see Rep. Gifford attack), but my fear doesn’t mean the US government can outlaw handguns to keep me safe. The 4th amendment is equally valid as the 2nd amendment. And, the security risk that validates an administrative airport search is far less than the security risk of handguns in general.

    A private corporation cannot violate your constitutional rights, so if you had the option to purchase a ticket from an airline whose contract said you had to be strip searched and touched on your sexual organs in order to board their flights, that would be perfectly acceptable. In that case, you don’t have to fly….and there is a competitive marketplace that might develop which will provide a certain level of security that passengers can choose from.

  6. Here’s my take on this:
    (1) There isn’t a state that does not have laws against inappropriate touching, voyeurism and child pornography. None of these state statues have been found to be unconstitutional, not have they been found to be contrary to established Federal law.
    (2) Airports fall under municipal jurisdiction, whether it be city, township, county or state. Think about it: who does the TSA call when they want someone arrested… local authorities. Ditto when a TSA thief is caught. Local jurisdiction, subject to state laws (see (1) above)
    (3) Title 18 USC Section 242 “Deprivation of Rights Under Color of Law” states that “This statute makes it a crime for any person acting under colorof law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the US. … Acts under ‘color of any law’ include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of law” the unlawful acts must be done while such official is purporting or pretending to ace in the performance of his/her official duties.”

    Seems to me that all of these TSA gropers and voyeurs should and can be arrested for breaking state laws.

  7. The question I raised in my original post and which has yet to be answered is whether when you buy a ticket you are not entering into a contract with the airline to ” abide by and follow all rules and conditions set out by the airline and it’s officials.” I think you are. I should note that when flying back into the U.S. from abroad should you decide you must fly, the authorities are far less tolerant about fears of touching “junk” than we appear to be. Read the contract you agree to when you buy a ticket and you will learn all sorts of things, including that you can be denied boarding for refusing to comply with security searches… “

  8. @Eric. You answered your own question. The airline can deny you boarding for refusing to comply with security searches, as you pointed out, since most contracts have this in there. Many contracts will refund your money or it is clearly spelled out they will refund your money if you decline a security search.

    However, that doesn’t make a governmental strip search or sexual assault pat down legal when performed by the government agency, or private contractors operating under the direction for the government agency. The airlines have nothing to do with it, other than 4 things:

    – They have sued and lost (up to Supreme Court possibly, can’t recall, but certainly in Appeals Court) their contention they should give less money to the TSA for security vs their spending levels spent in 2010

    – They love this because it gives them fairly good legal protection from lawsuits should something ever happen and a person passed through security and caused a fatality(ies), although we all know the chances are incredibly remote. Or, the screened checked baggage was determined to have an explosive device which caused fatalities.

    – The airlines like that the TSA checks your name vs your boarding pass, since this helps prevent people from giving tickets to others

    – The airlines are complicit in taking our rights away. They could have their CEOs and boards, most of whom are US citizens last I checked, fight the illegal and abusive TSA tactics. Instead, they are sheep who sacrafice their customers and their personal rights. Compare their silence to the patriots who fought for an independent US – leaders and leading businessmen in the colonies stood up against the British. No one in commerce today will stand up for the US Constitution or citizen rights.

    Eric, your point is that you agree to the terms of the ticket – no one disputes that. But the searches are NOT performed by the airlines, so one is coerced by our government with the threat of not flying, and the coercion leads to unconstitutional practices and abusive strip searches and genital touching. Some people may have no issues giving up their rights for security against unimaginably small event probabilities, but that doesn’t mean they can give up everyone’s rights.

  9. @eric @Jeff’s response is dead on.

    On my most recent flight (December 2010) I opted out of the Radiation scanner (the one you are instructed to walk through with your hands up), and did not consent to a physical search of myself. I was extremely reasonable, which is most likely why I took two hours of 9 people’s time. What I mean is, if I was being an ass or yelling, they would have booted me outright. Instead I asked the TSA manager to provide me with any law or regulation that required me to do so… He specifically said he could not and if it does exist, it’s classified beyond his level and he has not seen any such law or regulation.

    I did offer to show that I was in no way a threat, and offered to even strip for them and show them any part of my body they wanted to see… not that I wanted to, far from it, but I declined to give them permission to touch me.

    TSA employees I learned later are federal employees, not any sort of law enforcement, and actually have less rights and more restrictions on what they are permitted to do that a public citizen walking past you on the street. The TSA can not detain or search anybody without their permission. If they feel this is required, they call a law enforcement agent or agency.

    The TSA manager called my airline (Alaska) who sent a representative to the security area to talk with me. He said the Airline was in no way concerned that I posed any sort of threat and I was 100% welcome to fly (I was even told they do not need to see my identification), but that if the TSA didn’t let me pass through the security area I would not be able to get on the flight (obviously). Eventually the TSA had a few police officers ‘escort’ all of the 6′ – out of the security area … (yes, really, to the other side of the rope). lol. I missed my flight (the whole process did take ~ 2 hours).

    I looked around a bit at the different screening areas and well, being a little smarter, I passed through a different line and was not asked to go through a useless Radiation generator nor did they ask to pat me down. I was on a flight new flight within 20 minutes and arrived 10 minutes after my originally scheduled flight.

  10. And the TSA has never answered questions about if a woman menstrating refuses the scanner and is patted down and has on a thick sanitary napkin will she be asked to remove it or will the TSA person ask to look down her pants and pat her actual genitals. Same for diapers. But – while the TSA has not specifically answered this question, there are at least two instances on record where they have asked a woman to remove her sanitary napkin and a 95 year old cancer patient to remove her diaper. It seems they are fearful to answer this in public thinking that terrorists will now start packing explosives in diapers and sanitary napkins. The result is that now the elderly, incontinenet, and women are discriminated against. The reality is the terrorists can always find a way around fumbling TSA security. There are better ways to handle security without violating someone’s body – iris scanning and trusted traveler programs for one. I doubt given passenger and flight attendant awareness that a passenger is now the real threat. We need to be focusing on the horrific lack of security around our airports and cargo. There are far easier ways for terrorists to target planes than by trying to smuggle something on board on someone.

  11. Some very good discussion here all around!

    I keep reminding the airlines, when I receive any sort of correspondence from them via my flyer’s miles memberships – that I refuse to purchase their services while they continue to remain silent on this issue and do not work for meaningful, effective security screening procedures that are conducted in the context of maintaining our human and constitutional rights.

  12. Sooooo, what about this…I am a Police Officer. I have arrested people for groping children (Oregon Law: Sex Abuse III) Those arrested and convicted have done nothing more than what the TSA agents are doing now. If I were to witness this conduct at the Airport would I not be remiss if I didn’t take action? What else really galls me is that the TSA agents seem to have more authority to search than I do. If I were to stand outside the local 7-11 and randomly search people before they went in just because the place “might” get robbed, I’d be in the unemployment line post haste! I know there is a big difference between airports and 7-11’s but the point is “reasonableness”

  13. Ron,

    The issue with the TSA is their legality is tied to airports and the reasonable need to search. The problem the TSA runs into now is they are operating outside of a number of areas in which they have the legal standing to operate in the manner they operate.

    Happy Flying!

    -Fish

  14. Physical exams are far worse, when they grab your balls and tell you to cough. or getting the prostate exam. You don’t hear too many people fussing about that though. I would rather be frisked by the TSA then get a prostate exam. You people are all crazy.

  15. Jack, use your brain for one moment and think about that fact that you are saying that a random government bureaucrat has the right to touch your genitals as much as a medical doctor does. For one thing, no one says that you have to go to the doctor and be examined just so you can travel on an airplane. For another, doctors deserve your respect and trust. I hope you understand that when you are examined by a doctor they are touching your genitals to check for illness, where as the TSA is touching your genitals because they insist on treating every US Citizen as if they might have a bomb in their underpants. I’m not going to call you crazy, but I will call you an idiot who will do whatever you’re told as long as you’re spoon-fed the idea that it’s for the greater good.

  16. I have flown numerous times since the fall of the twin towers. I have not yet faced the adversity of being “felt up” as many have claimed, too include “95 year old cancer patients” (How many 95 yr old cancer patients do you know, Really?) I do not disregard any 95yr old cancer patients who are being continually groped everytime they fly.

    @Opyium, I applaud your right to question authority and commend you for taking two hours of the TSA and Airline’s time and effort, too include your own and missing your initial flight. It was good thing to do so on your personal time, because if it were a job related issue and you had a specific timeline to meet and it was not met, can you imagine telling your employer the importance of you proving a point to the TSA? Unless, you are a critical player in your job, your employer probably would feel that you could easily be replaced as there are people lined up to replace you in today’s economy. Then we would be reading about a lawsuit against your employer. How many times have you contemplated on doing this since?

    @ Katherine – how many times has there been a successful terrortist attack since the TSA implemented their “Groping Procedures”, and how many times have you been groped by a TSA agent doing their job, or did you just feel it necessary to chime in and call Jack an idiot for following rules?

    There is a serious problem, and it has been taken out of it’s intended context, twisted around and exploited on both sides. This is America, Home of Life, Liberty and Pursuit of Happiness! Life is too easy for most folks, if they feel that to be patted down is unneccessary, there is “Greyhound”, take a bus, or are you too good to ride with common folk. (You wouldn’t be caught dead riding in a Greyhound bus, what would your friends, think of you?)

  17. I find this all very interesting and important.

    What I would like to know, is if I am asked to step aside for a physical pat-down/search, am I required to be searched by someone of the same gender? Being a male, why cannot I demand to be searched by a female, as opposed to another male? I am in no way homophobic, but to make a point, I would make such a demand.

    Can I do this? What are the consequences of such a demand.

    Thanks for any replys…
    SN

  18. My flying is very limited but when I do fly I enjoy the TSA goons. Let me start by saying I fly out of San Francisco, Oakland, or San Jose Ca all of which are heavily patrolled by real officers as well. My trip usually involves me walking up to the goon station and handing them my bag. I NEVER put it through the scanner. Then I remove any metal and walk through the detector.

    The last time one of them wanted to ‘pat’ me down I asked them why. He said I was randomly picked. I told him that as a real sworn officer I am declining that any member of the TSA physically ‘pat’ me down. I then told him that if he felt it necessary that I would allow the real officer next to him to search my person. The officer chuckled and I was allowed to pass.

    My advise to other travelers is that if there is an actual officer stationed close to the TSA station ask for them to perform the physical search.

    Good luck

  19. I believe that most people look at the situation of TSA searches from the wrong viewpoint, that being, an attempt to pre-define what is necessary and legally allowable in passenger screening.

    At the time of occurrence, there is little anyone can do if they believe that a TSA agent (or any law enforcement agent) is operating beyond the limits of their authority. What is important is how the courts interpret the limits of law enforcement. In the case of the TSA, the 9th Circuit Court has already determined that airport screenings are allowable if “no more intrusive or intensive THAN NECESSARY, IN LIGHT OF CURRENT TECHNOLOGY, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

    The 9th Circuit Court recognized that, at the time of screening, judgement calls must sometimes be made by the screeners as to what steps and methods are utilized in ensuring that an adequate screening has been conducted. If the screeners are acting in good faith, as any good employee should, and they are not confident that you have been adequately screened, then they are not doing their job to the best of their ability.

    How confident do you want to be that the other passengers on the plane, people that you’ve never seen before in your life, have each been adequately screened for weapons and explosives? If the screener is only 90% confident that the impatient, defiant person in front of you in the security line is not carrying an explosive device, is that ok for you? Is it still ok with you when you find out that the person is on the same flight as you? Is it still ok with you when you find out that his seat on the plane is right behind yours? Is it still ok when you realized that he has placed some of his belongings right under your seat, right where he is allowed and recommended to place his belongings? Wouldn’t you, at that point in time, rather that the TSA screener was 100% confident that this stranger was not carrying an explosive device? Wouldn’t you be grateful that, even after passing through the scanner, and believing it was absolutely necessary for everyone’s safety, the screener groped the guy just a little? I think at that point, I would feel even safer if I, too, had been groped a little. In fact, I’m going to go grope myself right now. Don’t worry, I’ll make sure you’ll be safe. You can trust me.

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