The TSA has been tasked with finding “weapons, exposives, and incendiaries” (WEI) and preventing them from making their way onto airplanes. See 49 CFR § 1540.5 (“Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries”). To that extent, the TSA can lawfully conduct an “administrative search” for that purpose and that purpose only.
This means that if they’re searching in a way that is intended to find evidence of other unrelated crimes (most often, finding small quantities of drugs), they’ve exceeded their authority and are conducting an unconstitutional search with neither consent nor warrant. Courts have repeatedly slapped down evidence found by TSA searches not aimed at finding WEI as inadmissable.
Last week, the government filed a motion to dismiss my lawsuit relating to the TSA’s illegally detaining me for refusing to let them grope me (now the fourth motion to dismiss so far in this case, none so far yet granted). Part of the suit was that while detaining me, the TSA went through every inch of my bags, including reading my books, credit cards, and anything else that had print on it. Naturally, this offers no value to the search for WEI. But you could see on the agents’ faces that they were so upset that someone would dare to say no to being groped that they wanted to find something just to show who’s boss when people question their authority.
The government’s motion to dismiss stated that the TSA has the right to search bags not only for WEI, but also for “identification media.” They reason that a terrorist might be using a fake ID, and therefore if they can find a fake ID in your bag, they might stop a terrorist from boarding an airplane. From the TSA’s 2009 Operation Directive, quoted in the motion to dismiss:
Screening may be conducted for the purpose of finding threat items or identification media, as appropriate.” Paragraph 6(A)(6) goes on to note that “once screening at the checkpoint has begun, as a policy matter, TSA may screen an individual’s accessible property for identification media,” and that “the purpose of screening for identification media is to re-verify that the individual’s identity has been matched against government watch lists . . . .
The term “identification media” is not defined in the government’s motion nor in their internal policy that discusses it. At the least, they claim that ID cards, credit cards, and the like are covered.
What about a bank statement, insurance bill, or official letter? Oftentimes an agency such as the Department of Motor Vehicles will ask for something along those lines as proof of your identification.
How about those prescription bottles? Everything has your name on it and nothing looks “suspicious” about the pills inside, yeah?
What about every other document? Might have to read it to make sure it’s not a bank statement, bill, official letter, etc. What about turning on your iPhone to see what name shows up in there? Your laptop will presumably identify you and all your e-mail aliases, right?
And what are you doing with that “suspicious” amount of cash? A terrorist might deal in cash, after all.
Make no mistake: the TSA will use this policy to justify any search of your belongings, including checking out the pictures of your wife on your cell phone, “investigating” your credit cards and bank accounts (stealing iPads was so last year, bank fraud is the new thing), and doing whatever they can to find evidence of any impropriety whatsoever, at which point the police are called.
At that point, if you forgot to pay that traffic ticket, if you forgot about the half-gram of medicinal marijuana you left in your pants pocket, or if you’re just generally pissed off about your rights being shredded (or in TSA parlance, “disorderly” and “interfering with checkpoint screening”), you’re going to jail.
All this, ladies and gentlemen, is to ensure compliance. Don’t want to be groped? You better go through this radiation machine and let us take a nude picture. Don’t want the TSA up in your iPhone? They only save that search for the “troublemakers.” Just do what you’re told, don’t argue, and the TSA may let you pass.
This is truly “papers, please” — it can happen now on any mode of transportation, and if the search can include taking nude pictures of our bodies, touching our genitals, and reading our documents, there is truly no limit left on these searches. All that’s left are full strip searches and literally putting their fingers inside us — oh wait, both have happened time and time again (from the last link: “I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia”).
There should be no doubt left that this is not “for our safety.”
As a glimmer of hope, this “identification media” reasoning has already been declared unconstitutional by a federal judge. In US v. Fofana, the TSA had a man arrested after going through his bags and finding additional passports, then reading the passports and determining that they were fake. There was no possiblity that reading the passports would have resulted in discovering a bomb, and the TSA used the same “could have been someone other than the person he claimed to be” justification.
U.S. District Judge Algenon L. Marbley suppressed the evidence, noting that the TSA “went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing.” The TSA, however, apparently feels it can ignore the courts, as it did in the EPIC case.
(Originally posted at TSA Out of Our Pants!)
(Photo: Flickr Creative Commons/bfishadow)