WillCAD

FYI: Baltimore City PD has nothing to do with BWI. The airport is not even in Baltimore, it's in the suburbs. But regardless, BWI is owned and operated by the Maryland Aviation Administration, a MD State agency, and as such it is patrolled by the Maryland Transportation Authority Police, a state police agency.

relangford

OK, I was trying (and obvisously failing) at humor. Sorry.

ND Sol

Actually that is not what it says about screening checkpoints and the requirement by the TSA to present ID at those checkpoints. There is no authority for such in the CFRs. Here is the analysis:

1. 49 C.F.R. §1540.107(b) states that a person must provide "his or her full name, as defined in § 1560.3 of this chapter, date of birth, and gender". It doesn't use the term "verifying identity document", which is used in (c). As such, presentation of id is not required under (b). Moreover, the information required by (b) is given when you make your airline reservation. It is the typical info you give to the airline that is required to complete your reservation. You are not giving it directly to the TSA. The other time is when a person "makes a request for authorization to enter a sterile area." This would be inapplicable to passengers.

2. 49 C.F.R. §1540.105(a)(2) states, "No person may: . . . (2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas."

3. That section addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is the TSA's limit for the sterile area.

4. Four areas are delineated in the foregoing section, but only one is applicable to passengers - the "sterile area". "'Sterile area' means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property." (49 C.F.R. §1540.5). The definition of sterile area sets forth the specifics for those "systems, measures or procedures", which is "the screening of persons and property".

5. So "screening of persons and property" could include requiring identification, couldn't it? And that is what Francine (TSA's chief counsel) did in turning to Google to complete her analysis (and how the nickname, "Francine the Googling Attorney" came to be). And that might be fine if we had nothing else to go from, but that is not the case. We do have a definition of what that means: "'Screening function' means the inspection of individuals and property for weapons, explosives, and incendiaries." (49 C.F.R. §1540.5). And to add to that, we have a definition of "screening location", which "means each site at which individuals or property are inspected for the presence of weapons, explosives, or incendiaries." (49 C.F.R. §1540.5).

6. So "inspection of individuals and property for weapons, explosives, and incendiaries"; I don't think that even Google would come up with an analysis that typical identification falls under the rubric "of weapons, explosives, or incendiaries". As such, the authority to require identification or identifying passengers by the TSA just doesn't exist.

7. Just to put another nail in this coffin, let's reexamine Point 2 from a different aspect. That particular C.F.R. addresses not only the “sterile area” as related to systems, measures and procedures, but also includes any "secured area, AOA and SIDA". Each one of those has as part of its regulations specific identification requirements for being granted access. So why would three of the four areas go to such levels of specificity while the one applicable to passengers is silent? How can any reasoned analysis conclude that although one of the four doesn't have an identification requirement and the other three do, that doesn't matter?

8. Interestingly, the TSA specifically amended the C.F.R.s to add 49 CFR 1560.105, which is the only passenger identification requirement therein, which is watch list matching done by the airlines, not the TSA. Once again, not being done at the screening checkpoints and not being done by the TSA.

saizai

ND Sol: 49 CFR 1540.107(c)"An individual may not enter a sterile area or board an aircraft if the individual does not present a verifying identity document as defined in § 1560.3 of this chapter, when requested for purposes of watch list matching under § 1560.105(c), unless otherwise authorized by TSA on a case-by-case basis."

That specifically says you have to show ID (to someone, at least) to enter the sterile area or board an aircraft unless the TSA feels like waiving it.

Boggie Dog

Watch List Matching is done when you purchase an airline ticket. The airlines use databases made available through TSA to determine if a customer is on one of the Watch Lists. Also when doing On Line Check In is another time when your name is compared to the Watch Lists. If you are a hit you cannot print a boarding pass at home.

The TSA ID Checker does not compare your ID to any watch lists. There is no security related reason to show ID to this person, it is just another hurdle that TSA created for no valid reason.

petaluma1

1560.105(c) (1) In general. If TSA has not informed the covered aircraft operator of the results of watch list matching for an individual by the time the individual attempts to check in, or informs the covered aircraft operator that an individual has been placed in inhibited status, the aircraft operator must request from the individual a verifying identity document pursuant to procedures in its security program

The airline, not the TSA, gets to ask for ID.

WillCAD

It has a theoretical reason that makes sense.

After 9/11, it was decided to limit the number of people who had to be screened by prohibiting anyone except ticketed passengers from going through security into the airside areas.

To verify who is and is not a ticketed passenger, each person is required to show a valid boarding pass, and identify themselves to prove that they are the same person whose name is on the BP.

Of course, there are numerous gaping flaws in this scheme, but that is the intent. It's not about security, per se, it's about limiting the number of people who have to be screened, on the assumption that post-9/11 screening would take far more time per person than pre-9/11 did.

In the years following the implementation of this scheme, the reasoning behind it was retconned to include some BS security aspects, such as the assumption that since your name is run against the watch lists when you buy a ticket, and your identity is checked against your ticket via the BP when you enter the sterile area, it's not possible for someone on hte no-fly list to gain access to the sterile area (a ludicrous assumption that fails to acknowledge that fake IDs are easy to get and a fake BP could be made by any 9-year old with a printer). The vague, "we shouldn't lets just anyone airside because they're too close to the planes!" fear also comes into play.

saizai

I agree it says that the aircraft operator's supposed to ask for ID. But e.g. note 1560.105(c)(1): "The individual must present a verifying identity document to the covered aircraft operator at the airport."

If you have an electronic boarding pass / e-checkin, then you've not shown them ID at the airport. This doesn't seem to be enforced, unless the TSA document checker got somehow delegated the ID checking job by the airlines.

Seems like a good FOIA, anyhow… /me adds it to the list

ND Sol

First, you need to read all of 1560.105(c)(1) to put the last sentence in context:

So it is the airline that has to ask for the ID, and only under specified circumstances. Under the above, the mere act of issuing a boarding pass meets the requirements of Secure Flight. What happens if the airline fails to obtain that identification:

I think that there is a reason why the TSA is not involved in this process directly with the passenger.

The TSA Reasoning For ID Presentation Requirement

As for doing a FOIA request, I wouldn't waste my time. (I have one that has been pending for over three years.) The Chief Counsel has already given her tortured analysis as to the TSA's authority to require ID, which is why she became Francine the Googling Attorney. Here is my exchange with Francine:

Francine said: “As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.”

My response:

A basic rule of construction concerning the interpretation of CFR’s is breached in your analysis. CFR’s are to be interpreted in the strictest sense especially when the regulation involves restrictions on individuals and their actions. The agency that promulgates the regulation also is the drafter. As such, if the agency wanted to make the rule broader, it should have drafted it as such.

49 C.F.R. §1540.105(a)(2) addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is your limit for the sterile area.

You also conveniently left out two words (among others) when you state “that access to the sterile area is ‘generally’ controlled through the ‘screening’ of persons and property.” After the word “controlled”, the words “by TSA” were not included. As such, you give the impression that the word “generally” refers to the screening process when in fact the reference is to the TSA. That is not only disingenuous, but wrong. Boundaries are set for screening of persons and property.

We also don’t have a reason to go to Google for definitions of “screening.” It is contained in the CFR itself. If that definition is too restrictive, you just can’t conveniently ignore it; you need to go through the process of amending the regulation. In that manner the Google definition can then be included if you feel it is appropriate to accomplishing the TSA mission. Are you not amenable to that?

I had a very seasoned attorney once tell me that if he was given the opportunity to draft a document, as long as he was able to have free reign over the definitions section, then he would let the other side’s attorneys draft the rest of the document. Definitions are a critical and integral part of a legal instrument.

saizai

FOIA'd.

saizai

What case law supports your strict construction claim?

Generally, agencies get to interpret what their own regulations mean. Quoting the TSA itself from one of its briefs in my current case:

"Chevron v. Nat'l Resource Def Council, 467 U.S. 837 (1984) (agency interpretation of regulatory scheme entitled to deference); Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (court should "defer to an agency's interpretation of its own regulation . . . unless that interpretation is 'plainly erroneous or inconsistent with the regulation'")"

Please do not mistake me for agreeing with the TSA — I'm currently suing them, after all.

I only say what it seems to me that the law is, not what it ought to be.

Quite true. And TSA using some news story to redefine its own regulations is obvious BS. There's a process under the APA for (publicly) issuing interpretive opinions or amendments of their regulations. If they want to say that "screening" includes ID check, they should have to make that officially, not secretly or retroactively.

Not that they actually obey the APA…

ND Sol

You are a member of the news media?

I think that what you will see will be Francine's reasoning for ID checks. If there was something else, I believe they would have produced it by now and wouldn't rest their requirement on such shaky ground.

How long do you expect before you see documents from this request? As I stated above, it is now over three years and counting for my relatively simple request for incident material.

ND Sol

There are two (well three) reasons that the Auer deference is not applicable here. The third is that Justice Scalia has said it should be overturned on all counts and he appears to have other support on the court for this. The more salient reasons are this requirement is a restriction on personal liberty, which should invoke additional scrutiny, and the second is the interpretation "is plainly erroneous or inconsistent with the regulation". The regulation itself sets forth the standards, but Francine wants to include additional restrictions with no basis to do so.


What you quoted was from my response to Francine. It was not directed to you.

saizai

According to recent Supreme Court cases (and 5 USC §§552 & 552a) that bloggers qualify as news media too, yes. I do journalistic work from time to time, and my FOIA request is part of that.

Probably.

I have a current FOIA lawsuit against them to which I could join this if they fail to timely respond.

Scalia: doesn't matter who said what if it's not in an opinion. TTBOMK Auer hasn't been overturned, so it's still good law, regardless of whether it'd be ruled the same now. If you're aware of an opinion that overturns or narrows Auer, please point to it.

"Restriction on liberty": I'm not aware of any statutory construction canon or case law that lowers deference or heightens scrutiny because of that. Please cite.

Plainly erroneous: that's probably the only viable attack, IMO (in addition to lack of statutory authority).

But it turns on deference and APA status. The agency has to actually officially interpret its regulations; I'm not aware of any such document being published or authority for Kerner to personally interpret on behalf of the agency without an official proceeding. If it's so broad an interpretation as to constitute a regulatory change, it has to be in a rulemaking, which I'm not aware of either.

If deference is given, which it probably would be IMO, then you'd have to convince the court that Kerner's interpretation is in "plain error". That's a pretty tough standard.

Showing that the USC doesn't allow it is probably easier, since the agency does not have authority to make binding interpretations of USC, only to implement it in their regs.

Fair enough; I misunderstood.

yandosan

The "How many terrorists have you caught? " line is particularly effective because the idiots have not caught one. But of course TSA is there to scare you and humiliate you, not catch terrorists. Anyone who has not realized that
by now has to be a dope.