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Monday, November 22, 2010

For Your Safety, Of Course

As a disclaimer, I promise this is my last post on the TSA.

Senator Jay Rockefeller, a champion of the freedom of expression, has joined the ranks of bureaucratic geniuses who believe the TSA is the bee's knees.* TSA chief John Pistole received assurance from the great-grandson of John D. Rockefeller at the Senate hearing last week. The chairman of the committee overseeing air travel, Rockefeller assured Mr. Pistole that he was doing a "great job" - nay, "a terrific job."

Other fans of the TSA include Senators Amy Klobuchar and Claire McCaskill, who assured Mr. Pistole that, if Americans only learned more about the TSA's procedures, they would settle down and accept the measures taken for our "safety." If the measures taken by the TSA are supposed to be in the interest of our safety, they might be missing the mark.

A study by three professors at Cornell University showed that, when the TSA started to require extra checked baggage screening in 2002, passenger traffic dropped by six percent. As Nate Silver of the NYT pointed out, in the wake of security measures people were even allegedly in favor of, the Cornell study shows that "there was a material reduction in air travel: inconvenience outweighed security for quite a few passengers when push came to shove." Even more startling is the danger people subject themselves towards as a result of the alternative to air travel: driving. Cars are much more dangerous than air travel. According to the same Cornell study "roughly 130 inconvenienced travelers died every three months as a result of additional traffic fatalities brought on by substituting ground transit for air transit. That’s the equivalent of four fully-loaded Boeing 737s crashing each year."

For those of you who have a penchant for privacy, I recommend tungsten underwear. For those of you who would like to pay $11,000, I recommend refusing to be searched. For those of you who will be on the ground indefinitely, and just want to make a statement, I recommend this t-shirt. All of these options are permissible, and even encouraged, as long as you remember that the government always makes sage choices that benefit your own good (whether you realize it or not).

* - I know about the 'Stupid Grandson Theory,' but is there a precedent on a Stupid Great-Grandson Theory?


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  1. Serious legal question: What is the minimum amount I can wear in an airport and not get arrested? That is, it seems to me a reasonable protest, if you are a middle aged man like me, is to simply get as close as legally possible to the full Lady Godiva protest. Is it legal, for instance, to go through the security line wearing nothing but a Speedo?

  2. IMO, it would be great if you stayed on the TSA issue 24/7 until they start doing things that make sense. By the same token, I'm sure they have people checking the internet to see who is stirring things up. One of the things I would like to see is an end to any Congressional privilege. If Senators or Congresspersons were having to get out of their wheelchairs and walk thru security or were having their urine bags broken open by uncaring thugs I think we would see some changes.

  3. Solution: government-issue photo of your 'junk' on an ID card accompanied by photos of your representative state senators/congresspeople. That way, it will be easy to remember which elected officials are not going to bat for us the next time we can vote.

  4. Harsh Pencil, see this:


    The gentleman stripped to his skivvies, expecting the TSA would paw through his clothing until satisfied there were no bombs concealed there.

    Nope, no go.

    They wanted him to put his clothes back on so they could finish their "process".

    The TSA's efforts are obviously NOT intended to find contraband; if that was so, they would have searched his clothing and said "You're free to proceed".

    The WHOLE POINT is to proceed with their script from top-to-bottom so that if anybody sneaks anything on board a flight, they can proudly tell their supervisors that they followed every step of the process and therefore they're not to blame for whatever happened later.
    to deter would-be bombers.

    The TSA is engaged in group blame-deflection, not security.

  5. I think the problem there was that he stripped and that it was underwear, which, for some reason, is considered indecent, while equally revealing swimwear is not. Isn't walking around in swimwear perfectly legal? He should have just showed up in the swimwear, then he wouldn't be able to be accused of not following instructions by stripping when he was just supposed to stand there.

  6. I'm with "I"... stay on it, keep posting about the insanity, until they change or they move to quell dissent.

  7. Stay on the TSA, Kathleen, they need to feel the pressure or it won't stop at molesting children, the infirm and disabled, and clearly-innocent Americans. That said, great post! I'm getting a T-shirt (not flying until this is stopped).

  8. Professor,
    this whole T & A (oops, excuse me, it is TSA) fiasco bring to mind a young woman at a town hall meeting question Arlene Spector on the Constitutionality of forcing private citizens to engage in commerce (buying health care) or be subjected to a fine by the IRS (confiscation of wealth through bureacracy). Spector told her that under the "commerce" clause it was Constitutional, to which the young woman replied "If they can do THIS to us, then what CAN'T they do?"

    Now we know; the administration feels they can violate our Fourth Amendment rights to be secure in our persons against unreasonable searches.

    Now, I would ask you; do these unreasonable searches violate the terms of a contract between an individual and a private company in the respect that these conditions (body scanning and groping) are not part of the agreement you make with a private airline when you purchase your ticket? The payment of the price of the ticket is a legal and binding contract where the airline agrees to fly you to the destination for which your purchased the ticket.

    So not only do I see a violation of American's Forth Amendment rights, I see a breach of contract on the part of the airlines if the body scan and/or invasive patdowns are not specifically listed on the back of the ticket as part of the requirement to access your paid for flight.

    Your thoughts?

  9. Nudie scanners (which are almost certainly the inspiration for the porno pat-downs) are manufactured by two companies, L-3 Communications and Rapiscan (a subsidiary of OSI).

    L-3 Communications Contributions to Federal Candidates include:

    Rockefeller, Jay (D-WV) $2,000 in 2008
    Rockefeller, Jay (D-WV) $1,000 in 2004
    DCCC $12,500 in 2008
    NRCC $7,500 in 2008
    NRCC $25,000 in 2006
    DCCC $5,000 in 2006
    DSCC $2,500 in 2006
    NRCC $7,000 in 2004
    RNC $2,500 in 2004
    NRSC $2,500 in 2004
    DCCC $2,500 in 2004

    From OSI

    NRSC: $1,000 in 2010

    This is acutally a small sample...

    These numbers could provide some insights into the otherwise inexplicable "bureaucratic genius" of Congress on the issue of the TSA.



  10. Maybe this has already been discussed, this unwarranted searching is UN-CONSTITUTIONAL:

    "Amendment IV (1791)

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    I say: let the LAWSUITS commence

  11. The news reports I've read say the guy in San Diego was arrested by local PD and charged with two misdemeanors (ie. local code) for failing to comply with security and for recording the proceedings. No word on any action by TSA, even though he clearly declined to submit to their requested procedures.

    Is this $11K threat really anything more than that - just an empty threat meant to scare the rubes into compliance?

  12. @ThomasD, the $11,000 threat was made to Steve Tynan, a different man.

    This new guy thought that he would just help the process a little bit. Obviously the TSA are annoyed because they did not get to feel him up!!!

  13. Yeah, thanks Maggie, I got that. But TSA is threatening anyone who opts out.


    Why aren't any of the myriad lawyers on the internet stepping forward to discuss the legality of this fine? How can the Feds impose a civil penalty for the exercise of Fourth Amendment rights? How does attempting to board a plane become a blanket surrender of those rights? If it does, they why not start when you buy your ticket? What if TSA starts combing through your bank accounts, employment history, and whatever else they deem necessary?

    Strange that so many were willing to argue over the Constitutional intricacies of 'warrant-less wiretaps,' or the Arizona illegal alien law, yet it's all crickets chirping on this heavy handed threat.

  14. There is no Fourth Amendment violation, read the Supreme Court cases. If you don't like it, don't get on a plane.

    As for all of you clamoring about the use of profiling as a panacea to our problems, explain to me how that would have prevented Pan Am flight 103?

    It may suck being subjected to these prodcedures, but if it stops just one Islamic terrorist attack, then I am all for it.

  15. @obpopulus, I don't believe you. Please provide a link to Supreme Court cases which say the 4th Amendment is not valid any more and NO warrant is required for government to search a 3 year old or nun?

    I would like to read that.

    "just cause" just to fly does not cut it.

    I presume TheWon's regime, which extended President Bush' presidential order (read somewhere, don't have link handy) perhaps allowing warrantless searching for suspects under the Patriot Act?

    However, since TheWon's regime has stated we're not in a war on terror any more (muslims are just swell, hugs, bowing and kumbayas all around), which is it?

    Is the war on terror, patriot act and all American citizen rights mute? Is the constitution invalid now?

    Please enlighten us Obpopulus.

    Until then, citizens need to carry copies of the US constitution with them when they have to fly and demand a warrant for illegal searches.

    You can give up all your rights.
    I'm not going to so lightly.

  16. @Thomas D,

    those are really great questions and great arguments. You are correct in what you say.

    I am an Australian. We do not have these intrusive restrictions. We do not have to take off our shoes to go through security. I will let you know in 2 weeks time if I have to go through a scanner at Sydney airport :) but I do not think that Australia owns any of these invasive scanners.

    I have noticed though that the ACLU is getting involved in this one. That makes the situation very interesting, especially if they do decide to go for the class action lawsuit.

    In fact I believe that what is needed to stop the nonsense is a class action lawsuit against the TSA, the Øbama regime and Pistole, as well as Napolitano in particular.

    Also, people should stay on the subject and if it is proved there is a health risk involved with the pat-downs then they should definitely protest until the pat-down procedures are reversed. It is more than sexual molestation because these TSA workers do not change gloves.... candida albicans, genital warts, plus other bacteria and viruses that can be passed on from person to person because of lack of hygeine by TSA workers....

  17. To Lisa G:

    read Treasury Employees v. Von Raab (U.S. S.C. 1989) footnote 3 or just ask the Professor:

    The point is well illustrated also by the Federal Government's practice of requiring the search of all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage, without any basis for suspecting any particular passenger of an untoward motive. Applying our precedents dealing with administrative searches, see, e. g., Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), the lower courts that have considered the question have consistently concluded that such searches are reasonable under the Fourth Amendment. As Judge Friendly explained in a leading case upholding such searches:

    "When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air." United States v. Edwards, 498 F.2d 496, 500 (CA2 1974) (emphasis in original).

    See also United States v. Skipwith, 482 F.2d 1272, 1275-1276 (CA5 1973); United States v. Davis, 482 F.2d 893, 907-912 (CA9 1973). It is true, as counsel for petitioners pointed out at oral argument, that these air piracy precautions were adopted in response to an observable national and international hijacking crisis. Tr. of Oral Arg. 13. Yet we would not suppose that, if the validity of these searches be conceded, the Government would be precluded from conducting them absent a demonstration of danger as to any particular airport or airline. It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context.
    Nor would we think, in view of the obvious deterrent purpose of these searches, that the validity of the Government's airport screening program necessarily turns on whether significant numbers of putative air pirates are actually discovered by the searches conducted under the program. In the 15 years the program has been in effect, more than 9.5 billion persons have been screened, and over 10 billion pieces of luggage have been inspected. See Federal Aviation Administration, Semiannual Report to Congress on the Effectiveness of The Civil Aviation Program (Nov. 1988) (Exhibit 6). By far the overwhelming majority of those persons who have been searched, like Customs employees who have been tested under the Service's drug-screening scheme, have proved entirely innocent - only [489 U.S. 656, 676] 42,000 firearms have been detected during the same period. Ibid. When the Government's interest lies in deterring highly hazardous conduct, a low incidence of such conduct, far from impugning the validity of the scheme for implementing this interest, is more logically viewed as a hallmark of success. See Bell v. Wolfish, 441 U.S. 520, 559 (1979).