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Refusing to Fly Because of the TSA
Melkster
Registered User regular
Registered User regular
I have a huge problem with the TSA's body scanners. It's like something out of a dystopian science fiction novel: Virtual strip searches that are applied to every airline passenger. I think it's a violation of our rights against unreasonable searches. And I worry about these body scanners extending beyond airports. If they're okay for airlines, why wouldn't they be okay at train stations? And if they're okay at train stations, why not at football games? And if they're okay at those places, why not grocery stores or public schools?
The TSA allows you to "opt out" of the body scanner, an option I've always chosen. When you do so, the TSA requires that you submit to a manual body search -- an "enhanced" pat down, as they say. This pat down has usually been fine for me, except the last time I flew. The TSA agent pretty much punched my nuts four separate times in the course of the search, and left me aching (and feeling humiliated and assaulted) for a couple hours.
Both of these facts make me want to never fly so long as the scanners/pat downs are in place. (My parents live in Florida, so I'm not looking forward to the two day drive I'd have to make to visit them, but oh well.)
Anyway, so there are lots of very thoughtful people here. Which leads me to ask:
* Is my appraisal of the body scanner reasonable? Is the body scanner an unconstitutional violation of our rights?
* Is it reasonable to refuse to fly because of the TSA? Are there better ways to register my protest?
* Is there anyone else out there who refuses to fly because of the TSA and what has your experience been?
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Edit (1/21/2013): I've added some additional reasoning, after being presented with the fact that the courts have pretty much entirely disagreed with me. So here it is:
The TSA allows you to "opt out" of the body scanner, an option I've always chosen. When you do so, the TSA requires that you submit to a manual body search -- an "enhanced" pat down, as they say. This pat down has usually been fine for me, except the last time I flew. The TSA agent pretty much punched my nuts four separate times in the course of the search, and left me aching (and feeling humiliated and assaulted) for a couple hours.
Both of these facts make me want to never fly so long as the scanners/pat downs are in place. (My parents live in Florida, so I'm not looking forward to the two day drive I'd have to make to visit them, but oh well.)
Anyway, so there are lots of very thoughtful people here. Which leads me to ask:
* Is my appraisal of the body scanner reasonable? Is the body scanner an unconstitutional violation of our rights?
* Is it reasonable to refuse to fly because of the TSA? Are there better ways to register my protest?
* Is there anyone else out there who refuses to fly because of the TSA and what has your experience been?
---
Edit (1/21/2013): I've added some additional reasoning, after being presented with the fact that the courts have pretty much entirely disagreed with me. So here it is:
So I finally got around to reading the opinion on why exactly the new, enhanced searches are not a violation of the fourth amendment.
Just to reiterate for our non-American friends, the fourth amendment of our constitution prohibits our government from conducting unreasonable searches without a warrant and/or probable cause. The TSA is a government agency and are therefore subject to that law.
This right is stringently protected. For example, the courts have ruled that cops can't just arbitrarily stop pedestrians and frisk them without probable cause.
I've quoted the most important bit here:
I disagree with the courts.
I think they've made a mistake when it comes to their reasoning around the "least intrusive search." They've said that the TSA is not obligated to perform the "least intrusive search" that satisfies their obligation to find weapons and explosives. But I completely disagree. The courts have granted an exception to the fourth amendment. As such, that exception should be made in the most limited fashion available. I think maintaining privacy as much as we can is core to the spirit of the constitution.
I think they've overestimated the TSA's commitment to privacy, which seems very important to the decision. I'd be interested in seeing another petition centered around demonstrating the TSA's systemic lack of respect of traveler's privacy. (Hell, maybe my balls could become plaintiffs.)
I think the courts have underestimated the harm that a full body scan or a manual search causes some air travelers. I would be interested in seeing petitions by transgendered plaintiffs, for example, or others who are done harm by a search.
I also think think that they have not fully considered the escalating nature of these types of screenings -- in other words, if the only grounds the government needs to conduct an administrative search is the possibility of terrorism, then it follows that these types of screenings would be permissible almost everywhere. Such a world, however, would absolutely violate the fourth amendment. Else, the court should clearly outline what makes airports special, which they haven't done.
I also think that they're doing some strange reasoning with the "administrative search." They've said that "the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack." That might be the primary goal, but it's not the actual result. The actual result is a complete search for all illegal activity. I think that the court should have conducted their reasoning in light of that fact, as they have seem to do with other searches. In fact, they don't have any real test for that being a "primary goal" -- they just take the TSA at face value. But in fact, I would wager that the overwhelming majority (99+%) of persons arrested at TSA checkpoints have not been agents of terrorism. Given that fact, the reasoning about preventing terrorism as a primary goal seems extremely dubious. (Contrast that with breathilizer checkpoints on New Year's Eve, for example, or other kinds of administrative searches.)
I will note that the "you can choose not to fly" argument is not found in the decision.
Just to reiterate for our non-American friends, the fourth amendment of our constitution prohibits our government from conducting unreasonable searches without a warrant and/or probable cause. The TSA is a government agency and are therefore subject to that law.
This right is stringently protected. For example, the courts have ruled that cops can't just arbitrarily stop pedestrians and frisk them without probable cause.
I've quoted the most important bit here:
Finally, the petitioners argue that using AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives. In view of the Supreme Court’s “repeated[] refus[al] to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” [...], and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment.
As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. An administrative search does not require individualized suspicion. [...] (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” [...], and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. [...] The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” [...]
Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.
I disagree with the courts.
I think they've made a mistake when it comes to their reasoning around the "least intrusive search." They've said that the TSA is not obligated to perform the "least intrusive search" that satisfies their obligation to find weapons and explosives. But I completely disagree. The courts have granted an exception to the fourth amendment. As such, that exception should be made in the most limited fashion available. I think maintaining privacy as much as we can is core to the spirit of the constitution.
I think they've overestimated the TSA's commitment to privacy, which seems very important to the decision. I'd be interested in seeing another petition centered around demonstrating the TSA's systemic lack of respect of traveler's privacy. (Hell, maybe my balls could become plaintiffs.)
I think the courts have underestimated the harm that a full body scan or a manual search causes some air travelers. I would be interested in seeing petitions by transgendered plaintiffs, for example, or others who are done harm by a search.
I also think think that they have not fully considered the escalating nature of these types of screenings -- in other words, if the only grounds the government needs to conduct an administrative search is the possibility of terrorism, then it follows that these types of screenings would be permissible almost everywhere. Such a world, however, would absolutely violate the fourth amendment. Else, the court should clearly outline what makes airports special, which they haven't done.
I also think that they're doing some strange reasoning with the "administrative search." They've said that "the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack." That might be the primary goal, but it's not the actual result. The actual result is a complete search for all illegal activity. I think that the court should have conducted their reasoning in light of that fact, as they have seem to do with other searches. In fact, they don't have any real test for that being a "primary goal" -- they just take the TSA at face value. But in fact, I would wager that the overwhelming majority (99+%) of persons arrested at TSA checkpoints have not been agents of terrorism. Given that fact, the reasoning about preventing terrorism as a primary goal seems extremely dubious. (Contrast that with breathilizer checkpoints on New Year's Eve, for example, or other kinds of administrative searches.)
I will note that the "you can choose not to fly" argument is not found in the decision.
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That said, this December when I was flying to California the staff at DFW was putting everybody through the x-ray scanner. Not the metal detectors. They gated those off and made the scanner mandatory. And I was pissed. I also forgot t take my glasses off (metallic frame) and put them into the box with my other belongings so when I went through, they called the grope-hounds on me.
Then the whole thing took a twist at that point because it honestly wasn't that bad. I mean sure I was getting patted down by a guy, but he didn't even do a good job. No cupping of my sack or pinching of my ass. He was way more uncomfortable with it than I was. A second guy was going through my bag while a third was just making small talk to make the whole thing less awkward. I opted to do it out in the open rather than behind a screen because they weren't going to find anything questionable and I wanted everyone to see what this whole TSA thing does and looks like. I was a willing guinea pig.
But still, the x-ray machine being mandatory for all passengers coming through? That was absurd.
A lot of people seem to take issue with new rules and try to hang on to the old ones as though following them is an acceptable substitute. Like those guys that wanna be able to openly carry a gun into McDonalds. Yeah some 200 year old document says you could do that, but this 5 year old document says you can't. New laws trump old ones, that is the reason we make new laws.
Personally I don't think added security is ever a bad thing, but I was born in the land of CCTV cameras so maybe that's skewed. Being stopped and searched "for a knife" when trying to board a train is the most I've ever been inconvenienced, and that was due to me asking the cop if they were being serious, which they did not like.
Thank god.
Change is always good?
After someone already made $FuckYou off the contract, naturally.
I fucking hate this country sometimes.
That TSA guy that sealed the deal to buy the body scanners?
You bet your ass he got a well-paid new job for the company that sells the damn things.
Oh. Well, fuck. I typed up this thread for nothing, then, apparently?
So this is different somehow? They only give an "outline" of the passenger, apparently. Hmm...
Nah, the TSA is still pretty annoying.
I think the idea is to have a less invasive scan. And while a body scanner isn't going to do shit if some guy ten feet back in line has a bomb in their belt, the people want them. Orat least they aren't trying too hard to get rid of them.
I understand that others have philosophical issues with them, I'm just not one of them.
So I'm curious -- How would you feel about them in other parts of life? Or do you not find that line of thinking persuasive?
I don't find it persuasive. I cconsider it more a slippery slope appeal than a well grounded argument. There are reasons why airplanes are targets for terrorists and not trains. With the concentration of people in one place, it might be a goid idea to use these in stadiums, but I think many of them already use metal detectors at the gate.
Fair answer --
I think slippery slope answers are dubious too, but in this case I think it's important. Precedence is really important to lawmaking and court decisions. We have to be really careful about our reasoning on why enhanced security screenings are justified, or else we may find that justification applying everywhere.
If we justify enhanced security screening as being needed because airplanes are targeted by terrorists, then it follows that enhanced security screen is needed everywhere that terrorists target.
We do this already. But it's done differently for every place based on the environment, feasibility, cost/benefit, etc.
Essentially, a university does not work the same as an airplane. The risks and measures taken to prevent them are going to be very different.
That was pretty painless, and the line moved rather swiftly.
I thought the head of the TSA owned/used to work for the company that made the scanners?
I forget where I heard that.
However I don't think it's unreasonable for a person to voice their opinion of the TSA by not flying.
(and, of course, they're ineffective and a waste of money but that covers just about everything the TSA does, so I can't single out the backscatter X-ray machines for that)
Taking a commercial air flight is a lot like a collective action situation; you may just be doing your thing, but there's 200 other people on that plane doing their own thing, and a crew of a dozen people doing their thing to make sure you and everyone else gets where they're going safely and on time.
You're putting hundreds on people into an omnidirectional high-speed craft loaded with a thousand gallons of explosives and made of sheet metal.
Commercial flight is a voluntary situation. My right to my own privacy and comfort can withstand a substantial assault before it trumps the safety and security of everyone else on that flight.
So, like I said in the OP, I opt out every time. And for the most part the pat downs have been fine. Except for this last one, which totally wasn't. The TSA agent, when running his hand up along my inner leg, forcefully struck my balls -- and did it four times. (I was so stunned that I didn't say anything, and wasn't even sure what I would say -- "Hey dude please be careful with my balls?" Fuck.)
Anyway, so now opting out isn't an option. So it's either fly, and do the scanner (Which maybe the privacy concerns have been addressed with the new software?), or don't fly.
But, the thing is they're not actually all that effective. There have been tons of tests where people have gotten lots of things past them - guns, bombs, knives, etc. If they did provide a real level of high security then sure, but it's really just an illusion of security, making people feel safe
Not really. They're still going to use body scanners, they're just not going to use body scanners that display your naked self on the screen anymore. The new scanners will show a generic avatar on the screen that highlights any suspicious areas found in the scan. Other than that the technology is the same.
As far as I can tell, this change could be accomplished in software, and there are still (possibly unknown) health risks for using the scanners. Yes, they deliver less total radiation than you get during a flight, but they deliver it nearly instantly across a very small volume of tissue, making it a much higher concentration, and the last I checked the long term effects of this are unstudied. See http://www.npr.org/assets/news/2010/05/17/concern.pdf for this and other concerns.
Here's what I don't understand: The founders totally did have intrusive search options available for the government to use. They could have left out the whole 'secure in your persons' bit, believing that it's totally reasonable to strip search someone getting on a ship headed for Europe, or whatever. But they didn't. They left that bit in there, understanding the threat posed by an unsearched population and choosing the citizen's right to privacy above that concern.
So for me, I don't understand the argument that body scanners don't count as a violation of the fourth...
Well the only problem I have with them, really, is the nude body projection. Health risks are health risks, but I still think this solves any privacy issues that bothered me.
Just playing Devil's Advocate, but if you refuse the scanner, you don't have to go through it. You get a pat down instead, but isn't that enough to make the scanner search a matter of your consent and not unconstitutional intrusion?
1. It says unreasonable, which is open to hella interpretation.
2. You don't have to fly. If you want to fly you consent to the search.
Edit: Also what Chanus said.
I do pretty much agree with this though.
Seems like it'd be way easier to just put the drugs in an air tight container and ship them. I'd assume anyone willing to courier drugs via plane would have no qualms lying to Fedex about what's in the box.
I agree it's stupid and the reason behind it is arguably specious, but neither of those things really have anything to do with the Fourth Amendment.
Commercial flight is still a voluntary act, and you still have other options available to you, though almost all of them are some combination of being much more time-consuming, expensive, and uncomfortable.
there were like 8 of us
and my friend was talking about how he always gets a pat down so all of us were like, let's all opt out
and one guy was like whaaaat 8 opt outs?
i think the solution is get everyone scared of body scanner giving them cancer and tell everyone to opt out and thus overwhelm the tsa
man, fuckin, cancer machines
edit: not that both aren't bad
but especially since it's been shown before that they aren't super effective at catching things
Illusion of safety/reality of safety, that's not really what this is about. Its about how much privacy violation one should accept before it becomes to much.
If somebody came up with something that was just as intrusive, but effective. Would you accept the violation of privacy that accompanied it?