TSA Loses Mission Creep Lawsuits

Schneier has this on his blog. After reading his entry all I could think of was how TSA is showing the usual mission creep. Then I read the WSJ linked article and got a chuckle in that is what they discuss.

But two court cases in the past month question whether TSA searches—which the agency says have broadened to allow screeners to use more judgment—have been going too far.

A federal judge in June threw out seizure of three fake passports from a traveler, saying that TSA screeners violated his Fourth Amendment rights against unreasonable search and seizure. Congress authorizes TSA to search travelers for weapons and explosives; beyond that, the agency is overstepping its bounds, U.S. District Court Judge Algenon L. Marbley said.

“The extent of the search went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing,” Judge Marbley wrote.

In the second case, Steven Bierfeldt, treasurer for the Campaign for Liberty, a political organization launched from Ron Paul’s presidential run, was detained at the St. Louis airport because he was carrying $4,700 in a lock box from the sale of tickets, T-shirts, bumper stickers and campaign paraphernalia. TSA screeners quizzed him about the cash, his employment and the purpose of his trip to St. Louis, then summoned local police and threatened him with arrest because he responded to their questions with a question of his own: What were his rights and could TSA legally require him to answer?

Mr. Bierfeldt recorded the encounter on his iPhone and the American Civil Liberties Union filed suit in June against Homeland Security Secretary Janet Napolitano, claiming in part that Mr. Bierfeldt’s experience at the airport was not an anomaly.

“Whether as a matter of formal policy or widespread practice, TSA now operates on the belief that airport security screening provides a convenient opportunity to fish for evidence of criminal conduct far removed from the agency’s mandate of ensuring flight safety,” the ACLU said in its suit.

Nice to hear the ACLU actually doing something worthwhile.

I'd read about Bierfeldt's issue when it happened. I was surprised the TSA took such a antagonistic reaction to his question. I doubt I would have asked it, but it wasn't an unreasonable question.

“TSA agents don’t get to play cops,” says Ben Wizner, an attorney who filed Mr. Bierfeldt’s suit. The ACLU has heard an increasing number of reports of TSA agents involved in what he called “mission creep,” he says.

TSA spokesman Greg Soule says airport screeners are trained to “look for threats to aviation security” and discrepancies in a passenger’s identity. TSA says verifying someone’s identity, or exposing false identity, is a security issue so that names can be checked against terrorism watch lists. Large amounts of cash can be evidence of criminal activity, Mr. Soule says, and so screeners look at the “quantity, packaging, circumstances of discovery or method by which the cash is carried.”

Questioning travelers is part of TSA’s standard procedures, and the agency gives its employees discretion. “TSA security officers are trained to ask questions and assess passenger reactions,” Mr. Soule says. “TSA security officers may use their professional judgment and experience to determine what questions to ask passengers during screening.”

I would really like to know how much training TSA officers get on law and policing. Do they get as much training as a street police officer in a regular town? It doesn't sound like it, but it would be something to look up.

Schneier made a very good point about searches performed by TSA.

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is "implied consent," which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is "plain view," which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that.

Both of these principles are well established and make sense, but it's their combination that turns airport security checkpoints into police-state-like checkpoints.

The TSA should limit its searches to bombs and weapons and leave general policing to the police - where we know courts and the Constitution still apply.

I have a bit of snark related to the last sentence that I'll keep to myself, but the rest is very important. You can't mix the two exceptions without making such a search an unreasonable act in the spirit of the fourth amendment.