Texas House of Representatives Seeking to Ban Current TSA Pat-Down

***Update: 5/27/2011 – Read this story in the Houston Chronicle for an update.***

What's our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government.

We wish we lived in a world where you could just walk on a plane with no security screening, but that just isn't the case unfortunately.  Aviation security agencies worldwide have been using pat-downs long before TSA was created to prevent dangerous items from getting onto airplanes. The pat-down is a highly effective tool to resolve certain alarms and keep these dangerous items off of planes that could cause catastrophic damage.  It's important to note that if a passenger (or bag) alarms during screening, our officers must resolve the alarm before allowing the passenger and their baggage on the airplane.

Here are some pat-down myths and facts:

Myth: Everyone who travels will receive a pat-down.

Fact: In fact, less than 3% of passengers receive pat-downs. Only passengers who alarm a walk through metal detector or AIT machine or opt out of the AIT receive a pat-down. In addition, some passengers may also receive a pat-down as part of our random, unpredictable security measures.  In his testimony to a Senate subcommittee, Administrator Pistole said: "The bottom line is few people in the overall scheme of things will actually receive those pat downs. Now, we've heard some examples, and obviously, there's a vocal group out there who have experienced this for the first time, and, rightfully so, raising concerns, what's behind this. And the bottom line is we, the transportation security officers in particular, are trying to work in partnership with the traveling public to say we want to ensure that you are safe on this flight. Work with us in a partnership to provide the best possible security. And that's what it comes down to."

Myth: All children will receive pat-downs.

Fact: No. TSA officers are trained to work with parents to ensure a respectful screening process for the entire family, while providing the best possible security for all travelers. Children 12 years old and under who require extra screening will receive a modified pat down. 

Myth: Complaints about the pat-downs are extremely high.

Fact: Only a small percentage of the traveling public receives a pat down as they travel through the security checkpoint.  Between November 2010 and March 2011, TSA screened nearly 252 million people. In that same time period, we received 898 complaints from individuals who have experienced or witnessed a pat down. That's roughly 0.0004%.

Myth: Pat downs for certain individuals are limited to the head and neck.

Fact: No one is exempt. Everyone is subject to the same screening. TSA is sensitive to religious and cultural needs, but everyone must be screened effectively.

Blogger Bob

TSA Blog Team 

If you’d like to comment on an unrelated topic you can do so in our Off Topic Comments post. You can also view our blog post archives or search our blog to find a related topic to comment in. If you have a travel related issue or question that needs an immediate answer, you can contact a Customer Support Manager at the airport you traveled, or will be traveling through by using Talk to TSA.

TSA Myth or Fact: Leaked Images, Handcuffed Hosts, Religious Garb, and More!

There are so many rumors floating around right now that it’s hard to keep them all straight. So, in an effort to get everybody on the same page with the facts, here goes…

Pat-downs Myths & Facts


Myth: All children will receive pat-downs.

Fact: TSA officers are trained to work with parents to ensure a respectful screening process for the entire family, while providing the best possible security for all travelers. Children 12 years old and under who require extra screening will receive a modified pat down. 


Myth: The TSA pat-down is invasive

Fact: Only passengers who alarm a walk through metal detector or AIT machine or opt out of the AIT receive a pat-down. For this reason, it is designed to be thorough in order to detect any potential threats and keep the traveling public safe. Pat-downs are performed by same-gender officers and all passengers have the right to a private screening with a travel companion at any time.


Myth: The pat-down is a punishment for opting out of the AIT.

Fact: There’s nothing punitive about it - it just makes good security sense.  And the weapons and other dangerous and prohibited items we’ve found during pat downs speak to this.


Myth: Everyone who travels will receive a pat-down.

Fact: (Updated 11/23/10 to show percentage) (Updated 3/30/2011 to include random pat-downs) No. In fact, less than 3% of passengers receive pat-downs. Only passengers who alarm a walk through metal detector or AIT machine or opt out of the AIT receive a pat-down. Passengers may also receive a random pat-down. It is one layer in our tool kit to address the nonmetallic explosives threat. In yesterday’s hearing, Administrator Pistole said: “The bottom line is few people in the overall scheme of things will actually receive those pat downs. Now, we've heard some examples, and obviously, there's a vocal group out there who have experienced this for the first time, and, rightfully so, raising concerns, what's behind this. And the bottom line is we, the transportation security officers in particular, are trying to work in partnership with the traveling public to say we want to ensure that you are safe on this flight. Work with us in a partnership to provide the best possible security. And that's what it comes down to.”

Myth: Complaints about the pat-downs are extremely high.

Fact: Only a small percentage of the traveling public receives a pat down as they travel through the security checkpoint.  Approximately 2 million people fly in the United States every day.  The number of complaints is extremely low.


Myth: Pat downs for certain individuals are limited to the head and neck.

Fact: No one is exempt. Everyone is subject to the same screening. TSA is sensitive to religious and cultural needs, but everyone must be screened effectively. Administrator Pistole echoed those sentiments on MSNBC’s Hardball recently.


(At 4:42 on the clip)


MR. SMERCONISH: All right, here's another one that I hear from radio callers, the Muslim guard exception. You may not even know what I'm talking about. But if someone approaches a TSA checkpoint and they're wearing, by way of example, a burka, what's the drill?

MR. PISTOLE: Everybody goes through the same process. So whatever their ethnicity or religious beliefs, which I'm sensitive to and appreciate, the bottom line is people are treated the same in terms of either going through the advanced imaging technology if that's available or to walk through the metal detector. And if they alert, then they would have to have that alert resolved. And the best way of doing that is through a pat-down.

MR. SMERCONISH: No free rides, right, Mr. Pistole?

MR. PISTOLE: That's correct.

AIT Myths & Facts

Myth: AIT is not safe.

Fact: Backscatter technology is safe for all passenger and has been evaluated by the Food and Drug Administration, National Institute for Standards and Technology and Johns Hopkins University Applied Physics Laboratory. All results confirm that the radiation dose is well below the standard for safety set by the American national Standards Institute. The technology is safe. A person receives more radiation naturally each hour than from one screening with a backscatter unit. In fact a traveler is exposed to less radiation from one AIT scan than from 2 minutes of an airline flight. 


Myth: There has been an overwhelming public outcry against AIT.
Fact:  A recent CBS News Poll found that 4 in 5 Support Full-Body Airport Scanners


Myth: AIT cannot detect powdered explosives.
Fact: This is false. Advanced imaging technology is deployed specifically because of its ability to detect both metallic threats – which a metal detector would pick up – and non-metallic threats – which a metal detector would not pick up. This includes explosive material that can take the form of powders, liquids and gels and be used in an improvised explosive device made up completely of non-metallic material.


Myth: Everybody who travels must undergo AIT screening.

Fact: Advanced imaging technology is optional – anybody can choose to opt out and receive alternate screening, which will include a pat down.


Myth: TSA Advanced Imaging Technology (AIT) images can be stored on the AIT machines located in our airports.

Fact: Completely false – TSA’s machines should not be confused with the recent stories about the U.S. Marshals Service.  The machines used by TSA at our airports cannot store, print or transmit images. They simply don’t have that ability. Administrator Pistole also addressed this on Hardball. (At 6:03 on the clip)


Myth: TSA Officers are sharing AIT images they are taking with their cell phones.

Fact: Our officers are prohibited from bringing electronic devices such as cell phones into the AIT viewing room. This is a fireable offense and no such reports have been substantiated.


Myth: The AIT images shared by TSA are proof the images can be stored.

Fact: The images shared by TSA are either from the vendor, or were photographed by the media at a press event where an example of the technology was shown.


Myth: Children must be screened by the AIT.
Fact: Anybody can opt out of AIT, including children.


Miscellaneous Myths & Facts


Myth: Airports can opt-out of TSA screening.

Fact: All commercial airports are regulated by TSA whether the actual screening is performed by TSA or private companies. So TSA’s policies – including advanced imaging technology and pat downs – are in place at all domestic airports.


Myth: Radio Host Meg McLain was handcuffed to a chair after choosing not to undergo AIT screening.

Fact: She was never handcuffed to a chair and many of her outlandish claims were proven to be unfounded.


Blogger Bob
TSA Blog Team
MFZDSEU8AXMY 

Opting-out of Advanced Imaging Technology and the Pat-down Doesn’t Fly

A recent incident in San Diego where a passenger opted out of Advanced Imaging Technology (AIT) and also refused a pat-down has been raising some questions, so I wanted to help clarify a few things with this blog post.

AIT is optional for everybody. However, if you decide to opt-out of AIT screening, you must undergo alternative screening, which will include a pat-down. As I’ve said before, there is nothing punitive about it- it just makes good security sense. Obviously a passenger can’t completely opt out of all screening if they opt out of AIT. That would not make good security sense. AIT is deployed to help us find non-metallic threats, so if you’re selected for AIT and choose to opt-out, we still need to check you for non-metallic threats. That’s why a pat-down is required. If you refuse both, you can’t fly. It is important that all screening procedures are completed.  This ensures that terrorists do not have an opportunity to probe TSA’s procedures by electing not to fly just as TSA’s screening procedures are on the verge of detecting that the passenger is a terrorist. Also, it’s important to remember that TSA screens nearly 2 million passengers daily and that very few passengers are required to receive a pat-down.

Some have asked why we just don’t use the handwand. Good question. Threats can be both metallic and non-metallic. Pat-downs, like AIT, allow us to screen for nonmetallic threats that handwands would not find.

And finally, the $10,000.00 question of the day… Will you receive a $10,000.00 fine if you opt out of screening all together and leave the checkpoint? While TSA has the legal authority to levy a civil penalty of up to $11,000.00 for cases such as this, each case is determined on the individual circumstances of the situation. 

Blogger Bob

TSA Blog Team

You're Fired! But not yet...

When one of our employees ends up in hot water for a serious crime, the first thing we hear is “Why didn’t you can that employee on the spot?” Well, I went to our lawyers and asked that very same question and they fired me! (Joking) They graciously agreed to write a blog post. It kind of makes me feel bad about telling lawyer jokes at a party last night. (I’m kidding, I’m kidding…) Many thanks goes out to the TSA legal team for all they have done for our blog! ~ Blogger Bob

From our Lawyers:

Our Blog readers have asked why TSA simply does not fire an employee “on the spot” when the employee is arrested for a serious crime. Here is a general answer to that question.

Like other Federal employees, TSA employees who have completed a trial period (or probationary period, if applicable) are entitled to certain procedural safeguards and due process prior to removal from their government position.

The procedural safeguards for TSA non-trial period employees are set forth in TSA’s policy on addressing unacceptable performance and conduct. Prior to being removed, an employee is entitled to receive written notice of the agency’s proposal to terminate their employment, entitled to review any and all evidence relied upon, and the employee must be given an opportunity to respond to the alleged misconduct, orally and/or in writing. This is the “due process” referenced above.

TSA must have sufficient factual information to propose an employee’s removal. Arrests are usually based on off-duty misconduct, and TSA will not likely have sufficient information/evidence to immediately initiate a removal, even if the arrest is based on a serious violation of law. TSA officials work closely with Federal, state and/or local law enforcement officials to gather all of the information necessary to take appropriate action. Once the information/evidence is gathered, the proposal to remove is issued and the employee generally has seven days to respond to the proposed removal.

An indefinite suspension is also an option available to TSA management when an employee has been arrested, there is more than a mere suspicion or allegation of misconduct, and management believes prompt action is necessary. An employee who is indefinitely suspended is not in the work place and does not receive pay during the indefinite suspension. In the interim, TSA decides how to address the misconduct.

By placing an employee who has been arrested for a serious crime on indefinite suspension, TSA can protect the security of other TSA employees and the traveling public while taking the time to effectively investigate the misconduct and provide the affected employee with his/her job related procedural safeguards.

In certain cases involving Transportation Security Officers (TSOs), TSA has special authorities, which enable us to act more quickly when TSOs engage in serious misconduct. Specifically, when there is clear evidence that TSOs have engaged in conduct involving theft, illegal drugs or alcohol use on duty, managers may issue what we refer to as a “one step” removal notice, which immediately terminates their employment. Similarly, when the agency becomes aware of allegations of TSOs engaging in serious misconduct but needs to gather additional information, a “one step” indefinite suspension may be used. In these “one step” actions, the employee is provided the opportunity to respond before the “one step” removal or “one-step” indefinite suspension is effected. This opportunity to respond is known as the “pre-decisional” provision under TSA policy and comports with due process requirements. The “one-step” concept allows management to effect the action immediately after the pre-decisional requirement is completed, if appropriate.

In most cases, the agency spokespeople cannot disclose exactly what disciplinary action, if any, is taken against an employee. This is because specific information concerning employees, including any disciplinary action taken, is protected by the Privacy Act, which often constrains us from disclosing the information. Even if we cannot tell the public these details, rest assured that TSA takes such issues very seriously and will take appropriate action to address any misconduct.

This has been a word from our TSA Lawyers.

Traveling With Large Amounts of Cash

Since the St. Louis incident blog post, we have received many questions about traveling with cash and whether or not you are required to answer questions about the cash you are traveling with. Francine Kerner, TSA’s Chief Counsel was kind enough to take some time and address your questions. ~ Blogger Bob

Sometimes a TSA officer may ask a passenger who is carrying a large sum of cash to account for the money. You have asked why such a question is posed and whether a passenger is required to answer.

In reacting to potential security problems or signs of criminal activity, TSA officers are trained to ask questions and assess passenger reactions, including whether a passenger appears to be cooperative and forthcoming in responding.

TSA officers routinely come across evidence of criminal activity at the airport checkpoint. Examples include evidence of illegal drug trafficking, money laundering, and violations of currency reporting requirements prior to international trips.

When presented with a passenger carrying a large sum of money through the screening checkpoint, the TSA officer will frequently engage in dialog with the passenger to determine whether a referral to law-enforcement authorities is warranted.

The TSA officer may consider all circumstances in making the assessment, including the behavior and credibility of the passenger. Thus, a failure to be forthcoming may inform a TSA officer’s decision to call law-enforcement authorities.

Francine Kerner, TSA Chief Counsel

Furthering the Dialogue on IDs

This post is from TSA's Chief Counsel Francine Kerner. It was originally intended to be a response in the comments section to answer some ID questions, but we thought it deserved its own post. Thanks to Francine for taking the time to provide this well thought out and very informative response.

I would like to share my perspective of this issue and my legal analysis. From my perspective, in considering these matters, we need to go back to first principles: what security goals are we trying to achieve? One goal is to ensure that bad things are kept out of the sterile area. Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport.

To achieve the second goal, prohibiting entry by known or suspected terrorists (regardless of what they are carrying), we perform or cause others to perform an identity check against government databases. Identity vetting of airport or airline employees is a rigorous process that is based on a collection of fingerprints, a criminal history records check, and a security threat assessment.

Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying.

It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification.

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function. More recently, TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry. All of these steps have been taken to improve aviation security. Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.

I hope my response furthers the dialogue on these important issues. Thank you again for raising your concerns.

Francine Kerner
EoS Blog Contributor

Answers to Your Top 10 Questions

Here are the top ten questions we received from our recent request. We tallied the number of times we received each question or a similar version of it and noted the total for each question below. Thanks to the Office of Chief Counsel, Privacy Office and Kip for helping us provide you with the answers.

10) What immediate measures can a person take when encountering a less than friendly TSA agent? 12 of our readers asked this question.

First, you can request a lead or supervisor. If you're not satisfied after speaking with a lead or supervisor, you can request a manager. If you're in a hurry and don't have time to talk, or if you are not comfortable making your complaint in person, you can visit our new Got Feedback? web page. "Got Feedback?" is a new program that allows passengers to contact us via e-mail with very specific questions, comments, complaints, etc. Rather than your e-mail being sent to a single mail box where it sits in the queue waiting for a response, it is actually sent directly to the TSA Customer Support Manager at the airport your feedback concerns. Upon request, the Customer Service manager will contact you. Click here to read more about the "Got Feedback?" program.

Our officers have a tough job, and they are there to protect you and your family. Everyone at TSA appreciates the support of the traveling public, including those who express their support with their courteous behavior and words of support.

9) Do any members of the Blog team actively perform screening functions? 12 of our readers asked this question.

Not currently. When Bob joined the blog team, he was a Behavior Detection Officer based out of Cincinnati and a former Transportation Security Officer who performed screening duties. Bob eventually came to headquarters as a full-time blog team member. So, while Bob has 5 ½ years experience in various screening functions, he is no longer a TSO/BDO.

While not in a screening function, Jay is a Federal Security Director for an airport in the Midwest. He oversees screening operations at about 10 airports of varying sizes. Also, we had a TSO contribute as a guest blogger and write an article on Checkpoint Evolution.

There are currently many TSOs and other field employees actively involved commenting on the blog, and we appreciate their participation.

We will continue to invite members of the workforce to weigh in on the blog to keep it relevant to what is happening in airports. The blog will improve as we add new folks with various areas of expertise.

8) Why do you have access to my political affiliation? 13 of our readers asked this question.

"It's unequivocally not our policy to use political, religious, or other sensitive personal topics as identity validation. If it happened, it was wrong and will not be repeated." Administrator Kip Hawley

Perhaps you're asking this question because of a recent story about a person who said that their identity was verified at a checkpoint by asking their political affiliation. Early on, there was a case where the operations call center ran a passenger's information through their database (which includes commercial data) for a passenger without ID, and found no significant information to verify their identity. One thing that did come up was political donations for a person with the same name. Political donations are a matter of public record and accessible to anyone with basic Internet search skills. As a last ditch effort to help the passenger, a decision was made to ask them about their political affiliation. It was a mistake.

7) Why has TSA restarted the pointless gate screening? If the sterile area is in fact sterile, there's no need to screen those who have already been screened. 13 of our readers asked this question.

In reality, we do very little screening of bags at gates. We do, however, conduct a great deal of additional security in the sterile area. For instance, we have Behavior Detection Officers and K-9 teams on regular patrols as well as undercover Federal Air Marshals throughout the sterile area. Not to mention video coverage. We want to pick up on people who may be doing surveillance or attempting to prepare for a later attack. We are interested in activity around gates, but also restaurants, Duty Free shops, and other common areas.

As to gate screening itself, we have special purpose checks for specific items and behaviors. We may also have a particular interest in different flights. We layer in some random activities so as not to raise attention when we do have a specific interest. You may see our inspectors with new portable explosives detection devices that go onboard an aircraft ahead of boarding and check employees with access to the aircraft, including catering.

TSA’s overall strategy is to incorporate mobile, unpredictable, intelligence-driven security measures in ways that frustrate a terrorist planner seeking to engineer attacks against an easier, stationary target. We do not, as the question suggests, do gate screening of bags merely to re-do what we already did at the checkpoint.

Click here to watch a short video on gate screening.

6) I had a TSA agent tell me that each airport is free to implement security standards beyond those listed on the TSA site -- meaning that they could restrict items from being allowed in carry-on baggage that are explicitly allowed according to the TSA site. 14 of our readers asked this question.

There is a standard list of prohibited items that is available on our Web site to anybody with an internet connection, including terrorists. Clearly we have to pay attention to those items, since they are obvious tools of would-be attackers.

We cannot, however, fixate on those items and think that if we stop them, we're safe. Terrorists know TSA's standard operating procedures and work on how to engineer around them. Look no further than the August '06 London bomb plot with liquid sports drinks. If those terrorists had made it to the checkpoint, many of the items they were bringing would have been extremely hard to identify.

TSA is moving the focus of our officers from a checklist mentality to an empowered environment where officers use their experience and training -- and trust their instincts. The TSA workforce has screened more than 3 billion people, about half the population of the earth. We have a good handle on what "normal" looks like. Anything out of the "normal" range may get additional scrutiny, whether or not it is on the prohibited items list. That could mean a variety of things from a more thorough physical search to a seemingly casual conversation. It depends on what the anomaly might be. We know that with many layers of security the thinking, engaged and experienced TSO will be the one to stop an attack.

TSA is committed to using the judgment and experience of our officers to keep the security advantage. TSA is embarking on a two-day training for all officers that will tie together the latest intelligence analysis, more advanced explosives detection skills, and ways to engage with passengers in a way that promotes a calmer environment and better security result. It uses the physical checkpoint to our advantage to improve security.

5) Why doesn't TSA consider items being stolen from checked bags a security threat? Dangerous items could just as easily be ADDED to luggage. 15 of our readers asked this question.

We do! We consider every opportunity for someone to get a weapon or a bomb onto a plane and use a variety of methods to ensure there's something in place to mitigate that threat.

Specifically, there are video monitoring systems in places where individuals have access to checked bags, both airline baggage handling areas and TSA inspection stations.
Beyond that, we have a multi-layered approach to security, because if one layer gets breached, another layer or layers can step in to fill the gap. Let's focus on layers that directly affect your question.

TSA does background checks on and issues credentials to all employees who work in the secure area of the airport – which includes people handling baggage. TSA also conducts random employee screening every day in airports to ensure only people with proper and valid credentials get into the secure area.

TSA initiates internal investigations or ‘stings’ if we have a concern. When caught, arrests are made and serious federal charges are brought. Also, behavior detection officers are trained to spot suspicious behavior anywhere in the airport.

It's also important to note that employees who work in the airport often see the same people day in and day out, and know when something doesn't seem right. While they don't always work for TSA, they are another set of eyes and ears keeping watch for your safety.

4) Where is the Privacy Impact Assessment for the form that TSA provides to people who claim to be unable to present credentials at TSA airport checkpoints? 15 of our readers asked this question.

The Privacy Impact Assessment, or PIA, that covers the information collection and handling associated with identity verification is the Operations Center Information Management System PIA. Identity verification is one of several types of information associated with airport security efforts that fall within the coverage of this PIA.

For bonus points, we'll answer another question that some have asked: whether the form itself requires an OMB control number. Since the form entails no burden beyond identifying the individual and home address, it is exempt from Paperwork Reduction Act requirements pursuant to 5 CFR 1320.3(h)(1).

3) Given that it's trivially easy to forge a boarding pass, how does presentation of validated IDs do anything to ensure that people on selectee/no-fly lists don't enter the sterile area? 16 of our readers asked this question.

An excellent question. TSA's document checkers are looking at IDs and boarding passes. They are aware of the techniques that forgers use and are looking out for them. We are working with the airlines both in the U.S. and world-wide on this issue. There are encryption and other methods of validating a boarding pass. Some are sophisticated, some are very low-tech and simple. Some airlines are now using encrypted electronic boarding passes that appear on a passenger's cell phone or PDA. The International Air Transport Association, which secures international cooperation and uniformity in aviation regulations and standards, is moving all of its members to use this technology by the end of 2010.

Even so, it is important to remember that the different layers of security work together. We're not only checking IDs and boarding passes at the checkpoint, we have measures throughout the airport, at the gate, and on the aircraft, that identify someone who may be dangerous.

Lastly, one of the other Top Ten questions dealt with random gate screening, which is another way of closing the loophole. The random check can also be used to ensure additional security measures when our information suggests it is warranted.

2) In the context of ensuring air travel safety, what is the difference between two people, both of whom are willing to cooperate with TSA's invasive interrogations, one of whom politely declines to show ID, the other of whom claims he lost or misplaced his ID? 20 of our readers asked this question.


Bottom line is identity matters. We need to verify who is getting on the plane.
The best and quickest way for us to assure identity is with a photo ID issued by a federal or state government. We work with passengers who have something less than that, including no ID. Most passengers in that situation help us quickly resolve the matter by sharing whatever information they have, sometimes verified through our Ops Center in Virginia. Someone declining to show an ID that they have on them endures a lot of hassle for not much of a point since it is far more intrusive for us to resolve it through the Ops Center than showing a legitimate ID up front. It is only when someone refuses to identify themselves or attempts to use fake ID that we would deny entry to the sterile area based on ID.

Ever since airport security started decades ago, it was based on "things" – making sure a bad thing like a gun or a bomb didn't get on a plane. Problem is, terrorists kept finding new ways to disguise their tools to be almost identical to ordinary objects; most recently, bottles of sports drinks and batteries with explosives inside. They will continue to find more novel threats. That is why the additional layer of identity verification matters more now than ever. Watch lists are a valuable tool in keeping people with known ties to terror plotting off planes.

1) TSA cites 49 C.F.R. § 1540.107 and 1540.105(a)(2) as the law giving them authority to demand identification as a condition of granting access to a sterile area of an airport. 49 C.F.R § 1540.5 appears to limit such passenger screenings to searches for weapons, explosives, and incendiaries as the only requirement for granting access to the sterile area. How does TSA reconcile this conflict? 27 of our readers asked this question.

There is no conflict to reconcile. It is true that 49 C.F.R Section 1540.5 describes screening functions and screening locations in terms of the inspection of individuals and property for weapons, explosives, and incendiaries. However, 49 C.F.R. Section 1540.105(a)(2) doesn't use the word 'screening' at all. Section 1540.105(a)(2) simply states that persons may not enter the sterile area without complying with the systems, measures, or procedures being applied to control access to that area. TSA's identification requirement is one such system, measure or procedure that is used to determine who is permitted to access the sterile area.

By citing 49 C.F.R. § 1540.107 in our original post, we were trying to illustrate one of the ways (and indeed, the most visible way) in which TSA has used its statutory authority to establish security procedures at airports. But, it's important to note that TSA's responsibility for aviation security is not just limited to checkpoint screening. TSA has broad authority to develop policies, strategies, and plans for dealing with the changing threats to aviation security. See, for example, 49 U.S.C. §§ 114(d) and (f) (addressing TSA functions, duties, and powers); id. § 114(h) (addressing notification procedures concerning persons who may pose risk of air piracy or terrorism or a threat to the airline or passenger safety). This authority is in addition to TSA's responsibility for the screening of passengers and property. See, for example, 49 U.S.C. §§ 114(e) (addressing screening operations), 44901(a) (addressing screening of passengers and property).

Thanks,

Bob

EoS Blog Team

Why We Do What We Do: When Security Officers Find Illegal Items at the Checkpoint

A number of readers have raised questions about TSA's legal authority to make a referral to other law enforcement entities when evidence of a crime unrelated to aviation security is discovered during the screening process. This post explains that Transportation Security Officers (TSOs) are required to make such referrals. TSO referrals have led to the arrest and/or conviction of individuals for serious crimes such as illegally possessing narcotic drugs, transporting child pornography, and bulk cash smuggling.

As you know, the job of our security officers is to screen passengers and their belongings for weapons, explosives, and other prohibited items that pose a risk to transportation security. In the course of performing that responsibility, security officers sometimes come across illegal items that are not directly related to transportation security. For instance, last month in Guam, TSOs screening checked baggage discovered almost $900,000 in U.S. currency along with an undisclosed amount of crystal methamphetamine. Although anyone in the United States is free to travel with currency, the failure to make a currency report to Customs and Border Protection when leaving the country with more than $10,000 in cash is a violation of federal criminal law. 31 U.S.C. §§ 5316 and 5322. Attempting to smuggle bulk cash out of the country also violates 31 U.S.C. § 5332, a felony that carries a possible prison term of up to 5 years.

As a component of the Department of Homeland Security, TSA's standard operating procedures require Transportation Security Officers to report evidence of potential crimes to the appropriate local, state or federal law enforcement authorities. When a TSO opens a bag and discovers a large stash of ecstasy or obvious child pornography, he or she is not permitted to close the bag and turn a blind eye to these serious offenses. Instead, a TSO is required to call for law enforcement support. It is up to the responding law enforcement authorities—not our TSOs—to decide whether an arrest is warranted.

TSA's practice of referring evidence of criminality to other law enforcement entities is not only good public policy, it is fully supported by the court decisions. The courts have recognized that illegal items found during a warrantless “special needs” or administrative search, such as the search of an airline passeger's luggage for weapons or explosives, may be turned over to the police. See, for example, United States v. $557,993.89, More or Less, in U.S. Funds (pdf), 287 F.3d 66, 81-83 (2d Cir. 2002) (plain-view seizure of large number of money orders valid because airport security screeners permitted to search briefcase for weapons were not required to ignore evidence of crimes).

This case and others apply the principle of the plain-view doctrine, which allows a police officer to seize an unlawful item that he discovers in plain view, even if he comes across the item while carrying out unrelated duties. For instance, police who enter a residence in response to a call for medical assistance may seize contraband they see in plain view. See, for example, United States v. Quezada, 446 F.3d 1005, 1008 (8th Cir. 2006) (seizure of shotgun in plain view valid because officer entered apartment with reasonable belief that someone was inside but unable to answer).

The incidental discovery of illegal items in the screening of carry-on bags, is not, as one post suggested, akin to forcing a motorist to open his trunk at a sobriety checkpoint. Police officers conducting field sobriety tests at a vehicular checkpoint have no need to look in the trunk of a car to determine if the driver is impaired. By contrast, TSA screeners need to inspect every carry-on bag for weapons, explosives, and other prohibited items that pose a risk to transportation security. To do so, they must examine all compartments of the bag that are capable of concealing such items. If their task causes them to discover evidence of crime, they must ensure a prompt law enforcement referral.

And Now, a Word from Our Lawyers…

Since there are no lawyers on the blog team, they asked me to weigh in on some comments that have come into the blog on legal and constitutional issues. I'm the Chief Counsel at TSA, Francine Kerner, and I hope I can provide some useful information to those interested in the legal aspects of the screening process.

In regard to comments questioning the constitutionality of TSA's airport security screening procedures, the courts have addressed the issue and disagree with the notion that our procedures are unconstitutional. TSA takes the rights of the traveling public very seriously, and in implementing security screening measures, carefully weighs the intrusiveness of those measures against the need to prevent terrorist attacks involving aircraft. Balancing the same considerations, the courts have long approved searches of airline passengers and their bags for weapons and explosives as constitutionally permissible under what is now commonly referred to as the "administrative search" or "special needs" exception to the Fourth Amendment warrant requirement. See, for example, United States v. Edwards, 498 F.2d 496 (2d Cir. 1974). More recently, the courts have ruled that TSA procedures involving identification checks and passenger screening satisfy the requirements of the Fourth Amendment and properly respect the public's qualified right to travel.

See, for example, United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007); United States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006).

I see that at least one person was troubled by the fact that TSA's screening of airline passengers sometimes yields evidence of crimes not directly related to aviation security. Our responsibility and focus in the airport screening process is to prevent a terrorist attack involving aircraft. In the course of carrying out our mission by screening for weapons and explosives, however, we sometimes incidentally discover illegal items unrelated to transportation security. Federal law and policy require that we refer such items to law enforcement officers for appropriate action. See, for example, United States v. Marquez, 410 F.3d 612, 617 (2005).

To the commenters who have complained about receiving secondary screening despite not having alarmed the walk-through metal detector, there are several reasons why an airline passenger may receive additional screening. For example, some passengers are randomly selected for secondary screening in order to help detect dangerous items that might not alarm the metal detector. Adding this element of randomness to the process makes manipulating the system more difficult.

And finally, to address the comments that expressed concerns about screening in retaliation for voicing complaints about TSA: it is not TSA's policy to subject anyone to additional screening because of their political views or complaints about the screening process. However, threatening a security officer may trigger additional screening.

Thank you for the opportunity to respond to your concerns.



update by Francine on 2/27/08:

To date, we have received over 100 responses to our post regarding TSA's legal authority to conduct security screening at airports. Many of your responses raise questions about the authority of TSA personnel to request a name or other identifying information (ID) from a passenger. You also want to know why the information is requested, how the information is used after you provide it, and whether TSA is following the requirements of the Privacy Act of 1974 (Privacy Act), 5 U.S.C. § 552a, in requesting and using your personal information. Today's post will answer these questions.

In simple terms, the Privacy Act is a statute that controls the government's collection of personal information for later use. This is an important point. Merely asking a traveler to provide ID for a quick examination at the checkpoint does not trigger application of the Privacy Act as long as the agency is not making a record of the information to use in the future. In contrast, if TSA records a traveler's name or other identifying information with the intention of filing the information so that it can be retrieved at a later date by the traveler's name or ID, the agency is required to comply with the provisions of the Privacy Act.

During the screening process, TSA tries to identify individuals who may be planning to do us harm now or in the future. TSA tries to prevent potentially dangerous items from being brought into the boarding area. Finally, TSA responds to incidents that occur during the screening process. A passenger may need medical assistance, screened property may be damaged, lost or stolen, or an individual may become abusive in challenging a screening determination. Handling of these or any other matters may lead TSA personnel to request a traveler's name or other identifying information for filing in a Privacy Act system of records.

As a general matter, information filed in a TSA Privacy Act system of records may be used for a variety of security and administrative purposes. It may be used to identify individuals who require special screening procedures. It may be used to pursue a criminal prosecution or a civil enforcement action. It may be used to evaluate an injury or property claim, or to respond to a passenger complaint. TSA has listed all of the routine uses for the information it collects in the Privacy Act system of records notices published by the agency in the Federal Register. Most of the personal information collected in connection with the screening process is kept in a TSA system of records entitled DHS/TSA 001 Transportation Enforcement Records System (TSERS). See 69 FR 71828 (Dec. 10, 2004).

In some situations where TSA collects information directly from an individual, the Privacy Act requires TSA to provide a written notice to the individual setting forth its authority to gather the information and describing how the agency will use the information. One example of a TSA Privacy Act notice appears on the comment card that may be obtained at some screening checkpoints. Requesting a comment card should not result in harassment of any traveler. Additionally, TSA will accept anonymous comments either by filling out a comment card or by forwarding comments to the TSA Contact Center at tsa-contactcenter@dhs.gov.

Under the Privacy Act, any individual may submit a request to TSA to obtain the information we have on file about the requestor. With rare exceptions, which are set forth in the Federal Register, we will provide the requestor with the information we have in our files.

If you wish to see a further discussion of the Privacy Act, please see our Web site, at:
http://www.tsa.gov/research/reading/regs/privacy_act_faq.shtm.

Thank you for your comments and questions about the Privacy Act. We hope that you will check back on the Blog for future posts regarding legal issues.

Comment Policy

The purpose of this blog is to facilitate an ongoing dialogue on innovations in security, technology and the checkpoint screening process. We encourage your comments; your ideas and concerns are important to ensure that a broad range of travelers are active and informed participants in the discussion. TSA reserves the right to modify this policy at any time.

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TSA does not guarantee or warrant that any information posted by individuals on this blog is correct, and disclaims any liability for any loss or damage resulting from reliance on any such information. TSA may not be able to verify, does not warrant or guarantee, and assumes no liability for anything posted on this website by any other person. TSA does not endorse, support or otherwise promote any private or commercial entity or the information, products or services contained on those Web sites that may be reached through links on our Web site.

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We recognize that the Web is a 24/7 medium, and your comments are welcome at any time. However, given the need to manage federal resources, moderating and posting of comments will occur during regular business hours Monday through Friday. Comments submitted after hours or on weekends will be read and posted as early as possible; in most cases, this means the next business day.

For the benefit of robust discussion, we ask that comments remain "on-topic." This means that comments will be posted only as it relates to the topic that is being discussed within the blog post. The views expressed on the site by non-federal commentators do not necessarily reflect the official views of the Transportation Security Administration or the Federal Government.

To protect your own privacy and the privacy of others, please do not include personally identifiable information, such as name, Social Security number, phone numbers or email addresses in the body of your comment. If you do voluntarily include personally identifiable information in your comment, such as your name, that comment may or may not be posted on the Blog. If your comment is posted, your name will not be redacted or removed. In no circumstances will comments be posted that contain Social Security numbers, addresses, email address or phone numbers. You have the option of posting comments anonymously, but if you opt not to, any information, including your login name, may be displayed on our site.

Thank you for taking the time to read this comment policy. We encourage your participation in our discussion and look forward to an active exchange of ideas.

Privacy Act Statement
Authority: 49 U.S.C. §114(f). Purpose: TSA will use this information to promote communication between the Administrator of the Transportation Security Administration, the traveling public, and throughout the TSA community. Routine Uses: TSA may share the information provided by members of the public with facility operators, law enforcement, intelligence agencies, or other government agencies as necessary to respond to potential or actual threats to transportation and national security, or pursuant to its published Privacy Act system of records notice DHS/TSA 006, Correspondence and Matters Tracking Records (CMTR), 68 FR 49503-49504. Disclosure: Furnishing this information is voluntary.