ND Sol

No, they do not have unchecked authority. This comes up every so often and I have yet been directed to a governing law or regulation that would permit this. Once again:

I would be happy to review any law or regulation that states otherwise.

As I stated previously, a higher standard to conduct a search of a non-covered person is required if that person is not proceeding through the screening checkpoint or is not boarding an aircraft.

I thought that we were in agreement as to where administrative searches could occur, but it appears we are not.

So I am in the sterile area after deplaning and walking through the terminal to the airport exit, but a TSO can decide on a whim (without reasonable suspicion) to detain me and do a pat down search? However, that same TSO can't force me to stop and freeze during what turns out to be a drill? That's incongruous.

Section 107

I am not aware of anything that limits TSA inspections/searches to only the formal checkpoint screening area; in fact, the CFR section I referenced earlier specifically extends TSA's authority to pretty much most of an airport. But again, TSOs are limited in where they operate.

In the immediate checkpoint screening area (or the other areas I mentioned) no level of suspicion is required. Outside of that or the other areas, reasonable suspicion is much too high a requirement and doesn't apply in administrative searches. But at the same time, no, not on a whim or arbitrarily, either. But sure, if a TSO believes someone in the sterile area had not been searched appropriately or is in possession of a prohibited item then the TSO could require (through supervisors, of course) that person to undergo additional screening and request person to come back to the screening area (but also right there). If the person refuses then local law enforcement would be brought in. If the person refuses a lawful order of a LEO then s/he is most likely going to miss a flight, connection, or timely exit from the airport....

A TSO is not a LEO so one can give a "stop and freeze" direction/order but has no authority to compel compliance (refusal of a LEOs lawful order is a different matter).

gsoltso

All searches conducted at the airport by TSA, are part of the regulatory scheme. They are clearly defined in regulation, are implemented according to those regulations and are used at several locations throughout the airport. The signage is posted so that folks are aware that searches are not just conducted at the checkpoint areas.

As I explained above, I do not post images I am unable to find online at one of our sites (for the most part). That goes double for official signage - if it isn't on a TSA site, I will not post it.

I have never conducted a search without consent - I have had situations where passengers chose not to participate in the screening process and were denied entry into the sterile area. I have also been in situations where a passenger chose not to participate in additional screening (again, conducted as part of the regulatory scheme) at the gate area and was denied boarding, and escorted out of the sterile area by LEOs.

There is no higher standard required for a search past the checkpoint area, merely that the searches being conducted in the sterile area comport with the regulatory scheme or design.

Boggie Dog

Can you as a TSA screener approach a person in an airport parking lot and screen them and/or their belongings?

FliesWay2Much

Good question, but I doubt we will get an answer. If this ever happens to me, I've already decided that my response to them is: "Go ahead...make my day."

Boggie Dog

I think it is a fair question.

TSA screeners are not law enforcement so I don't know if any legal standards that would allow a search are present. I certainly don't think the Constitution goes away just because a person enters airport property, especially when there is no reason to think the person is trying to access any secure area. I believe Stop and Frisk has pretty much ended on Constitutional grounds so where exactly does TSA derive any more authority outside the entrance to the sterile area than what police have?

I can understand a need for increased security inside the aircraft operating areas of an airport but outside of those areas standard law enforcement standards should apply.

Section 107

I answered and then clarified the answer to these questions just a few posts earlier. But.....

A search by a TSO is an administrative search. Therefore, such a search as you propose by a TSO could only legally happen if ALL persons in the parking lot were also being searched. A TSO has no authority to arbitrarily stop individual persons and demand/conduct a search.

However, such a search could legally be conducted by the TSA through an employee who is a law enforcement officer (LEO such as a FAM or certain TSIs) for selected individual persons in a parking lot IF the LEO can articulate a reason.

Similarly, airport police officers cannot randomly stop an individual outside the secured areas without a reason, either.

Boggie Dog

Are you TSA?

Section 107

ha! no way, Jose.

Boggie Dog

I was really hoping that one of the TSA readers would respond. I'm curious how they interpret the rules they work under.

gsoltso

You know, that Section 107 guy has some pretty good posts.

ND Sol

This is being approached backwards. The inquiry does not start with TSA having broad authority to conduct searches of non-covered persons and then what regulations limit that authority. Just the opposite. A constitutional right inquiry starts with the basis that no search is permitted unless it is shown not to be unreasonable. As such the authority to conduct the search without a search warrant must be articulated and specific. When additional security measures were proposed, “President Obama directed the Department of Homeland Security and the TSA to ensure all pursued security measures were consistent with the privacy rights guaranteed by the Constitution.”

Part 1542 is for airport operators and, as such, defines the relationship between airports and the TSA; this part is not applicable to passengers. Much like an LEO’s zone of operation is defined to a city, county or state, so is Part 1542 defining the TSA’s zone with respect to airports. Even if an LEO is operating within his jurisdiction, it doesn’t give him the right to stop and search with impunity. Part 1542 is inapplicable to the discussion about the authority of TSOs to search passengers outside of the screening checkpoint and not boarding a plane.

The section of the TSA regulations entitled “Responsibilities of Passengers and Other Individuals and Persons,” contains the TSA’s rules regarding what air travelers must do to comply with TSA regulations.” 49 C.F.R. §§ 1540.101–.117.

What support do you have for your statements of law? How does the law differentiate in its effects between your standard of something less than reasonable suspicion and something more than “whim or arbitrarily”?

United States v. Davis, 482 F.2d 893.

Under your rules, if I am in the sterile area after deplaning and walking through the terminal to the airport exit a TSO can decide without even reasonable suspicion to detain me and do a pat down search, but can't force me to stop and freeze. The former is much more intrusive, but you would permit it, but not the latter. That's incongruous.

Bottom line, a higher standard to conduct a search of a non-covered person is required if that person is not proceeding through the screening checkpoint or is not boarding an aircraft.

Interesting your statement about “clearly defined in regulation” as this law review article notes, “Because information about the security measures followed by TSA agents is largely unavailable to the public . . . .”.

The section of the TSA regulations entitled “Responsibilities of Passengers and Other Individuals and Persons,” contains the TSA’s rules regarding what air travelers must do to comply with TSA regulations.” 49 C.F.R. §§ 1540.101–.117. What else can you point us to? And that clearly states:

I don’t think the signage says what you think that it says.

Actually, every time you work the screening checkpoint, you are “conduct[ing] a search without consent”. Your anecdotal statement about searches reinforces my point about searches done outside of the screening checkpoint or not part of boarding an airplane.

That is just not true. What is your basis for your statement of law? Please link us to that “regulatory scheme or design” that supports your statement.

“Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.” John Kenneth Galbraith

Bottom line, a higher standard to conduct a search of a non-covered person is required if that person is not proceeding through the screening checkpoint or is not boarding an aircraft.

Without their consent, no.

Unless you are proposing that the screening checkpoint be moved to the parking lot, where is the authority of the TSA to conduct an administrative search outside of the sterile area/screening checkpoint?

Boggie Dog

I appreciate the answer but have been hoping one of the TSA members would answer the question directly. I am truly interested in what they think the rules permit.

gsoltso

The only signage I can find at one of our sites, is the one at the Blog - see it here http://blog.tsa.gov/2011/02/screenin...-savannah.html

It says exactly what I said it did, and the signage at most checkpoints I have seen are an almost exact replica of this sign.

I am not going to argue the language you are using, I am merely stating this is the process -

-Passenger chooses to fly
-Passenger will choose to either submit to the screening and regulations covering the secured/sterile areas of the airport or they will not
- If they choose to enter, they are subject to screening upon entry, and at any other time that the programs indicate they will be (such as at the gate, at other areas in the sterile area)
- If they choose not to enter, they will be denied access to the sterile/secured area

**- There are some airports that also post signage similar to the one at the above link at the entrance to the airport, and the people either choose to enter and submit, or choose not to enter.

You are free to tell TSOs or LEOs you are not going to submit to a search in the sterile/secured areas, but the end result will most likely be you will be escorted from the sterile area, and denied access to the flights. YMMV as to the actual happenings that go on, but that is the most likely event that will occur.

** These airports post this signage completely independent of TSA/DHS and it is their individual policy.

Carl Johnson

What the passenger can do is to exit the (not so) sterile area and come back in. But that wouldn't be safe. The only safe thing to do in such a case would be to insist on a terminal dump and warn other passengers that passengers are coming in unscreened. If one passenger inside the (not so) sterile area needs to be screened for any reason, the area is not sterile and the checkpoint screening is ineffective. The only safe thing to do is to clear the terminal, clear out the crew at the failed checkpoint, either keep it closed or replace the crew, and allow the passengers back in only after all open checkpoints are known to be operating properly.

The TSA clerks say they have to get it right every single time. Given their 95% failure rate, it is an absolute miracle that we don't have a 9/11 terrorist attack 20 or 30 time per day at least. Either that, or there is actually no terrorist threat that can be reduced or averted by screening, and the TSA is superfluous as well as ineffective, rather than just ineffective.