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Steven Frischling
Live: HVN
Work: JFK-SFO-CDG-HKG
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Steven Frischling, aka: Fish, is globe hopping professional photographer, airline emerging media consultant working with large global airlines and founder of The Travel Strategist. Fish has racked up more than 1,000,000 miles since he started to track his mileage in 2005.

Fish's travel tends to be less than leisurely, including flying from New York to Basrah, Iraq, for six hours; Hong Kong for eight hours, Kuwait City for two hours and traveling around the world in 3.5 days to shoot a series of photo assignments in 4 cities and 4 countries on 3 separate continents.

Fish grew up at the end of New York's JFK International Airport's Runway 4R/22L, which probably explains his enjoyment of watching planes, fly overhead. When not shooting photos or traveling Fish designs camera bags, hones is expertise on airline security and spends his time at home cheering for the Red Sox with his 3 kids 102 yards from the ocean.

TSA VIPR Teams – Increase A Legally Questionable Failing Program?

In the spring of 2004, following the commuter rail bombings in Madrid, the Transportation Security Administration (TSA) began devising a plan to protect the Nation’s transportation systems and ensure freedom of movement for people and commerce,” for the railroads and mass transit systems in the United States.  The result of the TSA’s efforts to increase their presence, and the overall security of transportation as a whole in the Unite States was the creation of “Visible Intermodal Prevention and Response“(VIPR) teams, which began being deployed in high density transportation facilities in 2005.

 

As the TSA Administrator John Pistole lays out the agency’s 2012 budget, he plans for a 50% expansion of the VIPR program … but what is a 50% expansion of the VIPR program?  The TSA Office of Strategic Communications state earlier this year that the TSA deploys roughly 50 VIPR teams each week to conduct random security screening through the nation’s varied transit systems … however Administrator Pistole recently testified before the U.S. Senate that the “TSA conducted more than 8,000 VIPR operations in the past 12 months, including more than 3,700 operations in mass-transit and passenger-railroad venues.”  The TSA’s numbers have rarely been consistent when testifying before the House, Senate or the Government Accountability Office, however the difference here is between the TSA having conducted a total of approximately 2,600 operations total vs more 8,000 … much less 3,700 operations alone in mass-transit and passenger-railroad venues.”

 

Now … if you’re wondering where TSA VIPR teams would conduct operations outside of “mass-transit and passenger-railroad venues,” the answer borders on absurd and ineffective.   TSA VIPR teams have been known to operate in the middle of the night at truck stops; search truckers operating their own trucks, and an estimated 45% of VIPR operations are conducted in the aviation security domain … which is to say they are conducted at airports.

 

The TSA’s deployment of VIPR operations at airports overlaps with their already significant presence at airports, as well as overlapping with the duties of airport security and law enforcement.  The allocation of 45% of VIPR’s human assets, which reportedly consist Transportation Security Officers (TSO), Behaviour Detection Officers (BDO), Surface Transportation Security Inspectors (STSI), K9 Explosives Teams and Federal Air Marshals (FAM).

 

The make up of VIPR teams is interesting in the members they are comprised of, but the allocation of members is problematic. With only 100 STSIs, operating from 18 field offices, nationwide, responsible for covering the Nation’s largest rail and mass transit networks, removing STSIs from their already spread thin tasks leaves potential gaps in their daily duties of working with law enforcement and transit police throughout the United States.  The only members of a VIPR team that are Law Enforcement are Federal Air Marshals, however many FAMs already work an overloaded schedule and reallocating FAMs to handle surface security is outside the realm of their operational duties and a waste of their specialized skills.

 

Putting human assets, costs, inaccurate internal statistics and logistics aside … since the inception of TSA VIPR teams, these teams have yet to identify a single threat to the Nation’s surface transportation, they pose problems for commuters and rigid travel schedules where passengers aren’t prepared for the delay and their operations appear to be outside the TSA ‘immunity’ from the Fourth Amendment.

 

VIPR Teams operating in areas such as truck stops and highway rest stops are outside the TSA’s ‘immunity’ of the Fourth Amendment. The TSA is able to perform searches of passengers in airports, and other major transportation centers, due to the 1973 the 9th Circuit Court ruling on  U.S. vs Davis, 482 F.2d 893, 908.  The TSA cities these two passages of U.S. vs Davis “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.”

 

The TSA has found further legal footing for its searches in airports, and expanded presence into major transportation centers in the 1986 9th Circuit Court ruling on  U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 which states “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

 

While both these rulings pertain specifically to airports, the TSA has reasonably asserted they can apply to train stations, ferry terminals and bus stations … however these assertions have not been challenged in court as of yet … that said … these rulings have no bearing on truck stops and highway rest stops. The TSA has no legal standing to engage travelers in their own vehicles, operating their own vehicles or in areas where they cannot reasonably secure a sterile area for screened and unscreened travelers.

 

Yes, the TSA can ask truckers to participate in the “See Something, Say Something” campaign, but these truckers can’t be causally interviewed by a member of a TSA VIPR team or referred for further review.   The TSA is stepping outside its bounds in terms of manpower, reasonable expectation to intercept a threat and moving beyond the US Court rulings they use as justification for their actions.

 

When it comes to TSA VIPR Team effectiveness, the program leaves many gaps and wholly ineffective.  TSA VIPR Teams are visible, and intentionally visible, which would allow any terrorist seeking to do harm to bus, subway or train the time to back out the station or never enter the situation and go unnoticed.   Additionally, since a train or bus is not searched at every station, should someone seek to carry out a terrorist action, there are ample opportunities to evade a TSA VIPR Team.

 

Assuming the TSA is allowed to operate in Amtrak Stations, given that an incident at an Amtrak Station in Savannah, GA, caused Amtrak’s Chief of Police John O’Connor to make the TSA persona non grata until a defined agreement between Amtrak and the TSA can be instituted that is not contrary to Amtrak policy … should a terrorist seek out an Amtrak as target at a station that had TSA VIPR team on site there are many ways to avoid being searched.

 

The first major problem with how the TSA VIPR teams conduct passenger screening at many stations, commuter rail or Amtrak (when they were allowed at Amtrak stations) , is they leave significant gaps in coverage.   TSA VIPR agents tend to screen passengers in the station, allowing passengers to simply bypass the station and head straight for the platform.

 

Another problem is that not everyone on a train is screened, should a terrorist, for example, show up at the New London, CT, train station and spot a TSA VIPR team in action, rather than risk bypassing the station and walking straight to the platform, they could hit the gas, get in I-95 and beat the train to the Old Saybook station and board there, where a TSA VIPR Team wouldn’t be in place.

 

At bus stations, anyone seeking to carry out an act of terrorism could easily spot a VIPR Team, blend it, back out and exit the premises.  TSA VIPR Teams, even if a BDO spots someone acting suspicious, canon give chase, they must contact law enforcement and give them reason why they should chase someone who by the time the potential threat was communicate to the police could be in a car and out of sight.

 

For subway stations, in many cities a station has multiple entrances, when a TSA VIPR Team typically enters a subway station, they do not have the manpower to handle all the possible entrances in some stations, so they focus on stations that have one or two entrances, or entrances convening in a common area … thus allowing a potential terrorist to see the problem directly in front of them, exit the station and move onto a station that does not a TSA VIPR Team screening travelers.

 

OK … let’s forget the gaping holes in the effectiveness of TSA VIPR Teams, much less then TSA’s desire to increase them by 50% … lets look at the TSA VIPR Teams from the point of view of impacting the “freedom of movement for people and commerce” which the TSA’s Mission Statement says they are charged with ensuring … when people travel by airplane they know they need to arrive at the airport early to undergo security screening, however when people travel by bus, train, mass transit, they do not leave themselves time to be security screened and railroad, bus and ferry companies do not have the luxury of delaying departure times to accommodate the TSA’s VIPR Teams.

 

For Amtrak trains, many regular travelers arrive at the station maybe five minutes before a train is to depart. My local station, Old Saybrook, at a peak morning hour generally as about 15-20 people boarding for trains head south. Figure each passenger needs at a minimum 60 to 90 seconds to be screened, the TSA VIPR Teams will either cause people to miss their train or cause Amtrak to delay a train.

 

For morning rush hour commuters on the Long Island Rail Road (LIRR), a likely high density target, one the TSA VIPR Teams view as a threat  … say the TSA has three people screening on the Valley Stream platform for the 8:03AM train to Penn Station and 45 people are waiting to board this peak train … does the TSA cause two dozen people running for the train to miss the train or do they require the LIRR to delay the train, which then delays the 8:16am and 8:28am trains?

 

If a terrorist really wanted to attack an LIRR train headed to New York City and spotted TSA VIPR Teams screening passengers, they would hit the gas and take the five minute drive to the Rosedale station, boarding there, bypassing the TSA VIPR Team, still achieving their goal with no hassle of evading security.

 

The scenarios are endless … but none of these touches on a major issue of TSA VIPR Teams.  TSA VIPR Teams are not law enforcement. At times TSA VIPR Team searches catch people traveling with drugs, or an unregistered firearm, or other illegal items that pose no genuine threat to transportation security. What these TSA Agents uncover are items that fall under law enforcement jurisdiction … something TSA TSOs and BDOs, those actually doing the hands on screening … are not charge with enforcing.   Using the TSA’s ‘immunity’ from the Fourth Amendment only goes so far, and the TSA’s searches outside of airport, or major transit centers with the TSA can argue are similar to an airport in terms of environment (although it likely may not hold up in court should it get there) would simply get any case made against those stopped, searched and arrested for contraband items thrown out, as these items would have been revealed during an illegal search.

 

 

Given all the logistical, technical and legal issues TSA VIPR Teams face are they used by the agency as a jack-of-all-trades, but a master of none?

 

With the TSA’s 2012 Budget not yet set in stone I hope the funding for the VIPR Teams is examined closed and the agency is forced to justify its existence in a meaningful way.

 

Happy Flying!

@flyingwithfish

 

15 Responses

  1. “…and passengers may avoid the search by electing not to fly.”

    This part is apparently ignored by TSA.

  2. Jack,

    The TSA does give people the option, they can opt to not get in the security line, turned around and leave the airport.

    Happy Flying!

    -Fish

  3. I took Jack’s comment to mean:

    The person saw the security line in the airport, left for the commuter bus, saw the VIPR team searching the bus passengers, turned around and headed over to the taxi stand, found another VIPR team questioning taxi passengers, tried to walk home and was arrested for obstructing traffic as he walked along the shoulder of the limited access road that was the only way out of the airport.

    Or something like that.

  4. I guess if I were already in line I could claim I don’t have a ticket. If I am not a passenger, their Fourth Amendment exemption seems not to apply.

  5. […] A few days ago I wrote about the Transportation Security Administration’s (TSA) Visible Intermodal Prevention and Response (VIPR) teams, addressing the effectiveness and legal questionability of the TSA VIPR Program, in this post TSA VIPR Teams – Increase A Legally Questionable Failing Program. […]

  6. Some clarifications.

    1) US vs DAVIS is a lower court – not Supreme court – decision that was about whether a guys briefcase was opened illegally, and whether his fine for having a gun should stand. Davis won the case by the way.

    As part of that case, there was a lot of convoluted wording, which has not been tested (Steven is correct on this point, although Jonathan Corbett is getting close….) in court yet because the District Courts refuse to allow the constitutional challenges to be heard in their jurisdictions. This should tell you the Courts have lost their way…but I digress.

    One other thing in US vs DAVIS is that it asserted a “clear danger” as there was a history of 4 hijackings a month on US planes using metal weapons, strangely enough many were to fly to Cuba.

    If you look at the history of suicidal airline passengers on US Domestic flights with working non-metallic bombs – the whole reason the TSA is taking nude pictures / performing warrantless searches of our bodies / groping our sexual organs and female breasts/ and destroying the 4th Amendment and thus our freedoms, with the help of many cowardly politicians, most of them in the Senate – it is doubtful it would even begin to hold up to scrutiny.

    – There have been 0 of these types of passenger bombings in the last FORTY EIGHT YEARS on US Domestic flights. None since 9-11, none for over 20 years, none for three decades, and nearly none for HALF A CENTURY.

    – Today, only 36% or so of security lines may have scanners, according to TSA comments. Since not everyone goes through a scanner, the alleged vulnerability still exists at minimum for 64% of all passengers…which defeats the purpose. Yet, somehow, we have had no incidents.

    – If you are really scared, then yes, I admit that 2 people on NON-US flights failed MISERABLY in committing suicide and causing fatalities, out of EVERY FLIGHT EVER MADE GLOBALLY since 1997. And, they had 5 and 8 years respectively for the bombmaker to plan/design/test/pilot/refine a working bomb. Maybe it is hard to do? This is as statistically close to zero as you will find. By the way, 1997 was a liquid bomb on a Brazilian flight, although not clear the passenger was on the plane at the time or that it was planted by a passenger. 1 person died, plane landed safely.

    2) Specific to US vs DAVIS, they were discussing magnetometers. The use of X-Rays and Millimeter wave technology to perform an inch-by-inch search of your body without a warrant or reasonable suspicion is not covered in that case since these technologies did not exist. The nude pictures and the touching of sexual organs and breasts – including children and 100% of the time on those confined to wheelchairs – were not covered in that case.

    As far as comments about leaving lines, there is another case where a guy went through a metal detector and then tried to leave a further check with a “wand”. The courts ruled that he had already submitted to a consensual search. In the case of standing in a line, even US vs DAVIS points out that if someone leaves BEFORE walking through a metal detector, then they have that right since the PURPOSE of an “administrative search” would have been accomplished as a person not entering a secure area is therefore not getting on a plane with a prohibited object. Getting in a security line is not consent from past court cases, and with high profile incidents like Sharon Cissna, or with people leaving without getting fined, it is clear there is acknowledgement by the TSA that they can’t force a search on people standing in line.

    In the last 2-3 weeks, the TSA Airport Managers are now letting people leave an airport without a fine or hassle if they refuse to be touched on their genitals (gee, thanks…perverts.) This is no doubt the TSA recognizing that when they offer opt outs to people who refuse the scanners, then they have to just force them to not fly rather than arrest them. It is still wrong that criminal sexual assault, or simple battery, under coercion by taking away the right to fly (as defined by the Supreme Court in the 1950s case, flying is part of the “libery” referenced in the 5th Amendment) is not prosecuted by local police.

    3) The VIPR programs , as far as I can tell, are random saturation of public transport facilities where the 4th amendment is arbitrarily suspended. The only searches allowed by case law for subways are BY LAW ENFORCEMENT OFFICERS and then only “brief searches, with minimal examination to find the presence of threatening weapons.” They do not allow exhaustive searches, they do not allow searches with an intent to find criminal evidence (like drugs). Chief O’Connor of Amtrak knew this and that is one reason he threw out the TSA from Amtrak property.

    For those who are serious about the legal, security, and procedural issues involving the TSA, you can check out Freedom To Travel USA at http://fttusa.org (leave out the www) and download the INFORMATION KIT under the INFORMATION menu. There is more detailed analysis of US vs DAVIS incidentally.

    The document also talks about “Trusted Traveler” and the anti-freedom US Travel Association which is feeding the “security checkpoint of the future” crap to the TSA….and reiterates the clear connection to Rapiscan and L3, the two companies that make the scanners and how their products still figure prominently.

    Respectfully,
    Jeff

  7. […] […]

  8. […] no includes mass transit facilities, as the agency has been aggressively working to expand the TSA’s role in transportation outside of airport environments. Recently, Pistole explained the agency’s shift into a larger mass transit presence by […]

  9. […] TSA VIPR Teams – Increase A Legally Questionable Failing Program? (Flying With Fish) […]

  10. So, how many terrorists have these “Viper” teams caught?

  11. […]  Yes, in the United States of America there are Visible Intermodal Prevention and Response teams (“vipr” teams) ready to provide “surface transportation security” in unannounced checkpoints and […]

  12. Mike

    TSA VIPR Teams have caught as many terrorists as the TSA … none.

    Happy Flying!

    -Fish

  13. […] past the legally questionable aspects of the TSA’s deployment of VIPR Teams, and that some within the Department of Homeland Security (DHS) clearly believe VIPR Teams pose […]

  14. […] completing their journey and leaving the train) and buses. VIPR teams have also been conducting truck searches and, in  November of 2011, conducted a pilot program in Tennessee. This pilot program was not […]

  15. […] TSA VIPR Teams – Increase A Legally Questionable Failing Program? […]

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