The intent of this document is to provide Freedom To Travel USA’s public response to the TSA NPRM Document ID TSA-2013-0004-0001. The Notice of Public Rule Making was forced on the TSA by Court Order (http://epic.org/privacy/body_scanners/EPIC_v_DHS_Decision_07_15_11.pdf ) .
Freedom To Travel USA (FTTUSA) has deep awareness and expertise about the TSA’s unconstitutional Nude Body Scanners and the criminal pat downs that are an integral part of the Nude Body Scanner program. Our organization has supported cancer victim Sharon Cissna on her trip to a state legislature convention, given a briefing at Capitol Hill, and presented oral arguments just recently, in April 2013, to the 1st Circuit Court of Appeals in a rarely granted Amicus appearance concerning the TSA’s Nude Body Scanner program.
In response to its unlawful deployment of Nude Body Scanners (NBS), the TSA has proposed the following addition to the Federal Code of Regulations (FCR):
Proposed Addition in § 1540.107, add paragraph (d) to read as follows:
(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.
Freedom To Travel USA’s evaluation shows the suggested rule is useless, unnecessary, and unresponsive to the Court order. It fails to protect the Constitutional rights of Americans and does not adequately address or prevent the abuses that have inarguably occurred ALREADY since the Nude Body Scanners and criminal pat downs have been deployed unlawfully for over two-and-a-half years now.
Our conclusions are that the proposed TSA rule is:
ü Useless and unnecessary because the TSA already has the authority to conduct screening generally and it ALREADY has no current prohibition against using technology without requiring physical contact. The Walkthrough Metal Detectors (WTMDs) do not make physical contact and have been widely used for decades.
ü Unresponsive to the Court order because the proposed NPRM rule does not address Nude Body Scanners in the submitted change for the FCR. The submitted documents do discuss the current Nude Body Scanner technology, but the proposed rule change does not address scanners specifically. The NPRM also does not address any proposed limits on the technologies, for example, such as the use of ATR software which was a legislative change initiated by Congress. The proposed rule ignores this current Congressional restriction on the defined “advanced imaging technology”; as written, is wholly inadequate to meet the Court’s order.
ü Violating Americans’ inalienable rights as protected by the United States Constitution’s 4th Amendment because the TSA is conducting dragnet, administrative searches without detecting weapons, explosives, or incendiary devices at the end of the initial search.
Quite simply, the proposed “concealed anomalies” wording is too broad and unreasonable. Even when using the “ATR” technology, which does not display the nude images, this technology CANNOT identify what exactly it “thinks” it found. At the end of the ATR search, there is ZERO identification that a weapon or explosive was found. There is ALWAYS a secondary search based on any number of reasons that a person’s outline does not conform to a vague and unspecified “normal”. The Nude Body Scanner ATR search is an entirely new level of search never before performed in the United State of America ; essentially, the Nude Body Scanner’s search falsely establishes suspicion for further searching because it cannot, by current definition, positively identify objects it is supposed to be searching for! According to the TSA documents in the NPRM, the scanner deployment already existing affects HUNDREDS OF MILLIONS OF AMERICANS – EACH YEAR.
It is unreasonable to accept a search which has a 0% success rate at identifying objects which the search is intended to find, while simultaneously “identifying” millions upon millions of false positives.
ü Violating all Americans’ PRIVACY and especially profiling the medically disabled because ALL of the deployed scanner technology – AIT with and without ATR – leads to millions of secondary searches each year due to false positives and detecting “concealed anomalies” which are NOT weapons, explosives, or incendiary devices.
The secondary searches violate ALL Americans’ privacy because they often involve criminal pat downs which are coerced touching of female breasts, vulvae (female external sex organs), penises, testicles, and buttocks. This unwanted touching is a criminal act in ALL 50 states when performed in any other context by anyone, including truly authorized law enforcement staff.
Make no mistake – this is coerced touching as a traveler does not know if they will be subject to a criminal pat down before they start airport screening. Then, when the screening starts, there are possible legal penalties (administrative fines or possible arrest) for avoiding pat downs, in addition to the real threat to one’s freedom to travel within the United States, a freedom defined in the 5th Amendment’s use of the word “liberty” in several court cases. The right to traverse the airspace is also embodied in the FCR.
Another violation of American’s privacy is that those with medical conditions such as mastectomy patients, diabetics, colostomy patients, amputees, and other medical issues are “profiled” at a higher (100%) rate for further secondary screening when compared to those without medical issues.
HISTORICAL RECORD OF PRIVACY VIOLATION OF PASSENGERS WITH MEDICAL CONDITIONS
The proposed TSA NPRM Rule has already been active and used in the United States for two and a half years so we can measure its effectiveness. Freedom To Travel USA respectively submits the following two incidents, out of many thousands of documented complaints (ACLU, EPIC, TSA Complaint Forms, and Google Searchable on the Internet) since the proposed rule has been in effect.
Beginning Time Line Incident: LATE 2010
This State Representative received a sexual assault pat down AFTER going through a Nude Body Scanner. Her mastectomy scar was the apparent threat that required further investigation. When she encountered the SAME situation, she decided to take a stand. Reading the article from February, 2011, one will see that she already had the same experience 3 months earlier, in late 2010. The article also relates over 1,000 complaints by passengers.
Ending Time Line Incident: MAY, 2013 DURING THIS PUBLIC COMMENTING PERIOD!
This cancer victim had her false breast examined and touched after going through a Nude Body Scanner. Her private medical condition was forcibly revealed by an AIT screening.
Privacy is more than looking at naked pictures by voyeuristic TSA agents. It is also invaded by the most invasive inch-by-inch searches of one’s body, no matter how it is done, whether through physical contact or not! Privacy is also invaded by being forced to share personal secrets that are not otherwise observable in public – – especially sensitive medical and transgender issues.
It is OBVIOUS that the TSA implementation of the proposed rule results in invasion of privacy since the “anomalies” continually detected millions of times a year lead to invasion of privacy and criminal acts in all 50 states.
It is OBVIOUS the TSA implementation of the proposed rule has ALREADY repeatedly violated privacy through suspicionless Nude Body Scanners – for the ENTIRE TIME of their existence.
Freedom To Travel USA –Reasons For Changes To The Proposed Rule
Because we contend any primary screening, without reasonable, articulable suspicion, which examines the entire body of a passenger is unconstitutional, Freedom To Travel USA suggests a more restrictive PREFERRED rule which actually addresses the Nude Body Scanners as requested by the Court.
We are also suggesting a MINIMUM ALTERNATIVE change to the proposed NPRM rule to bring it closer to previous Court decisions and accepted administrative search doctrine. The critical principles and reasons for the suggested rule or any changes are as follows:
a) Better alignment with previously approved administrative searches under the 4th Amendment
The current reality of the NPRM rule is that the TSA has implemented the most invasive, general searches of any travelers at any time in our country’s history, affecting hundreds of millions of Americans each year. As we documented, the molestation and criminal pat downs – direct results of the implementation of AIT – have led to thousands of invasions of privacy.
In the context of balancing the security benefits to the overwhelmingly documented invasions of privacy – just as newsworthy in May, 2013 as they were newsworthy back in late 2010 – we submit the following facts on the effectiveness of identifying non-metallic liquid and powder bomb threats:
– FACT 1: The number of discovered non-metallic bombs carried by suicidal airline passengers on US domestic flights SINCE the AIT Nude Body Scanners were implemented: Zero
– FACT 2: The number of fatalities caused by airline passengers with working non-metallic bombs on US domestic flights in the LAST 50 YEARS (and the 47 years BEFORE AIT): Zero
– FACT 3: The GLOBAL number of fatalities caused by airline passengers with working non-metallic bombs – covering 402,800,813 commercial flights and 34,487,566,845 passengers – in the entire world since 1980: Two
(SOURCE: Manual curation of data from www.iata.org, www.bts.gov ,http://aviation-safety.net )
In essence, the introduction of AIT has NOT measurably increased security (due to AIT) as there has been no change in the rate of airline passenger non-metallic bombings on US domestic flights when compared to the 47 year period prior to AIT deployment.
Because the whole intent of the AIT Nude Body Scanners is to stop suicidal airline passengers with working non-metallic bombs on US domestic flights, the documented, nearly immeasurable risk dictates there should be a strong interest in maintaining the rights of individuals. The NPRM does not take any reasonable analysis of the risk into its wording.
The TSA has never found one passenger with intent to kill other passengers, and has never found one instance of non-metallic explosives with AIT, and has never identified one instance of preventing a viable working non-metallic bomb with AIT. Yet, the currently deployed AIT technologies under this NPRM has substantially impacted millions of Americans by forcing hundreds of millions of inch-by-inch body searches, a substantial subset of which have led to many privacy violations. Simply put, those with medical issues are unusually singled out as the “sacrificial lambs” under the AIT technologies deployed under this NPRM rule already. And, many able-bodied Americans have also found themselves subjected to gross violations and criminal pat downs as a result of the Nude Body Scanner introduction.
b) Better alignment with other search technologies’ effectiveness
The current wording of “anomalies” is completely misleading. The NPRM documents talk about what Congress has authorized in the following:
FROM TSA NRPM DOCUMENT (Section C): “The Secretary of Homeland Security shall give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives”
The main problem with the AIT currently deployed as would be officially permitted WITHOUT CHANGE to the NPRM rule is that it detects….NOTHING.
A stopped watch is right twice a day. That is better than the current AIT scanners, with ATR technology, which cannot identify any “nonmetallic, chemical, biological, and radiological weapons” when their search is complete. There is ALWAYS a further search.
For example, the AIT Nude Body Scanners do NOT detect explosive materials; they just use software to find “anomalies”, which are mathematically-determined discrepancies to some assumed parameter of what the human body looks like. And, when the scanners identify something real, it often leads to more PRIVACY INVASIONS such as exposure of medical conditions (mastectomy scars, prosthetics (breast or limb), medical devices (colostomy bags, insulin pumps, back braces), and unusual sex organ characteristics as has been reported.
Contrast this with Walkthrough Metal Detectors (WTMDs). They nearly always find metal – which is the goal of their search. There may be a secondary screening to identify what kind of metallic object was identified, but WTMDs identify a metal object. They don’t overwhelmingly “alarm” at a high rate on non-metallic objects, or medical devices, or colostomy bags, or false breasts. No reasonable person would put up with WTMDs that always alarmed on paper, rubber bands, or plastic buttons.
Or, consider blood alcohol tests. They are highly correlated with finding the blood alcohol level and nothing else. They don’t first identify the possible presence of AIDS, Hepatitis, or Leukemia and depend on a secondary test to measure blood alcohol levels. In short, they find what they are looking for at nearly 100% effectiveness.
The AIT, permitted under the proposed NPRM rule, has already proved it is wholly inadequate to ‘detect[s] nonmetallic, chemical, biological, and radiological weapons, and explosives’ at the end of its search. In fact, unlike any other search technology, it is a universal failure at identifying what it is supposed to find despite hundreds of millions of searches each year.
c) Better alignment with Americans’ opinions
Quite simply, a majority of Americans are against Nude Body Scanners and the associated criminal pat downs which result in invading privacy. From 2010, we measured a New York Times article comments section. The New York Times Op-Ed by Maureen Dowd (http://www.nytimes.com/2011/04/20/opinion/20dowd.html , NY Times, April 19th, 2011) generated many comments. Out of all the comments on this article, 61 out of 377 were Pro-TSA, which makes 83% against the current TSA procedures. [NOTE: One of the authors of this document read every comment to arrive at the numbers]. Clearly, out of the people who care by voicing their opinion, there is an overwhelming majority AGAINST AIT for primary screening.
But, we don’t have to depend on an early opinion to measure how Americans feel about this subject. Freedom To Travel USA suggests the government COUNT UP THE OPINIONS – for and against – THAT ARE SUBMITTED FOR THIS NPRM. That will give you the answer concerning the despicability of this wholly inadequate and unnecessary rule.
Freedom To Travel USA –Suggested Changes To Proposed Rule
Freedom To Travel USA suggests two alternatives to the proposed NPRM rule. We have provided template wording which can be easily fit into the FCR format by the appropriate government agency.
The purpose of the preferred alternative is to clearly restrict the most invasive general search, using advanced imaging technology, ever offered for non-law enforcement purposes. It is modeled after legislation introduced by Rep. Rush Holt (D – New Jersey) and Rep. Jason Chaffetz (R – Utah) in 2011.
This rule preserves the idea of reasonable, articulable suspicion based on previous information prior to fully examining one’s body; this maintains some integrity of the 4th amendment. This is analogous, for example, to the Supreme Court ruling against a search of one’s house using thermal scanning unless there is prior suspicion. The same concept should apply equally to one’s person, since there are no house-by-house, warrantless administrative searches for illegal weapons allowed by law in the United States.
Proposed Addition in § 1540.107, add paragraph (d) to read as follows:
(d) The screening and inspection described in (a) may only include the use of advanced imaging technology under the following conditions:
(1) ADVANCED IMAGING TECHNOLOGY.—Advanced imaging technology may not be used as a method of screening a passenger under this section unless—
(A) the National Academy of Sciences determines that the technology poses no threat to public health;
(B) the technology is equipped with a privacy filter or other privacy-protecting technology; and
(C) another method of screening, such as metal detection or explosive trace detection, demonstrates reasonable cause for utilizing advanced imaging technology to detect a possible threat to aviation security. “Reasonable Cause” as used herein is defined in the same manner, and shall carry the same legal restrictions, as for sworn Law Enforcement Officers.
(2) ENHANCED PAT-DOWN SEARCHES.—An enhanced pat-down search may not be used as a method of screening a passenger under this section unless another method of screening, such as metal detection or explosive trace detection, or use of advanced imaging technology in accordance with paragraph (1), demonstrates reasonable cause for utilizing advanced imaging technology to detect a possible threat to aviation security . “Reasonable Cause” as used herein is defined in the same manner, and shall carry the same legal restrictions, as for sworn Law Enforcement Officers.
(3) PROVISION OF INFORMATION.—A passenger for whom screening by advanced imaging technology is permissible under paragraph (1) shall be provided, prior to the utilization of such technology with respect to such passenger, information on—
(A) the operation of such technology;
(B) the image generated by such technology;
(C) privacy policies relating to such technology;
(D) the right to request an advanced pat-down search under paragraph (5); and
(E) the right to view the actual generated whole-body image of their person.
(4) PAT-DOWN SEARCH OPTION.—A passenger for whom screening by advanced imaging technology is permissible under paragraph (1) shall be offered an advanced pat-down search in lieu of such screening.
(5) PROHIBITION ON USE OF IMAGES.—An image of a passenger generated by advanced imaging technology may not be stored, transferred, shared, or copied in any form after the boarding determination with respect to such passenger is made.
The purpose of the minimum alternative is to “at the least” bring AIT to the same general effectiveness level as other technology searches. To be precise, AIT needs to identify specific threats at the end of its search – not just the presence of something with zero correlation to a threat characteristic.
Proposed Addition in § 1540.107, add paragraph (d) to read as follows:
(d) The screening and inspection described in (a) may include the use of advanced imaging technology under the restrictions in subparagraphs (1), (2), and (3). For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed items without requiring physical contact with the individual being screened.
(1)) AIT cannot be a general search for identifying anomalies, but must instead search for weapons, explosives, and incendiary items specifically
(2)The advanced imaging technology search MUST have a highly effective rate at specifically identifying the items for the search is intended.
(3) AIT cannot generate a high rate of false positives OR misidentification of “alarmed” items, such that a secondary screening reveals that specific item(s) searched for were not found
POST-NPRM Request for Legal Action To Restore America’s Freedoms
We ask that all concerned legislators and citizens join Freedom To Travel USA ( http://fttusa.org ) in restoring freedoms in our great country and to stand up against the fear of terrorism, instead of helping terrorists “win” by changing the nature of America.
Our goals are to restore legal airline passenger security, reinforce our constitutional rights against warrantless, unreasonable searches, and promote dignified procedures for those with medical issues.
The elected officials sworn to uphold the United States Constitution should be strongly supportive of the freedoms that make America a great country, and should not be afraid to preserve these constitutional rights as well as common decency for citizens. The specific legislative goals for airport security that we support and are asking you to support are:
ü Provide for airline passenger screenings using long-standing and effective legal means which existed prior to strip search scanners and sexual assault pat downs, specifically magnetometer (metal detector) screening. We also support effective explosive detection technology, “bomb sniffing” dogs, and cargo screening for passenger flights.
ü Forbid primary screening strip searches (including searches using Nude Body Scanners) of U.S. citizens, including children, except that law enforcement officers may perform strip searches under current legal authority and circumstances. This means no Nude Body Scanners that perform inch-by-inch searches of a traveler’s body.
ü Forbid physical searches of U.S. citizens, including children, except that law enforcement officers may perform physical searches under current legal authority and circumstances. This means no “TSA pat downs”, which are criminal touching under ANY other circumstance, for primary screening.
ü We are especially concerned that U.S. citizens who are in wheelchairs or with ‘medical metal’ – think of metal joint replacements (knee, hip, and surgery metal), artificial limbs, and similar medical issues – are currently profiled 100% of the time by strip search scanners and sexual assault pat downs. We propose a pre-flight clearance procedure be developed that will protect those with medical assistive devices from needing to violate their privacy rights in order to exercise their right to travel.