ND Sol

Yes, I know that TSIs can (and so can TSOs if authorized), but you didn’t answer the question of whether you are asserting that they have the authority without even reasonable suspicion to search any passenger inside the sterile area (and not boarding an aircraft) or outside the sterile area? And, once again, do you have a link to their authority to do such? A quote about what TSIs do at airports (cargo is different):

Note the “conduct comprehensive inspections, assessments and investigations of regulated entities” and “conduct investigations into alleged violations of security regulations at the screening checkpoint”. Passengers are not “regulated entities” and the passenger interaction is “at the screening checkpoint”. TSIs don’t have all the unfettered authority that you purport they have with respect to passengers.

For generalization purposes, I use “passengers” or “non-covered persons” on the one hand and “covered persons” on the other. While there may be some in the sterile area that are neither covered persons nor passengers and some that are both, the vast majority are one or the other. Covered persons (49 CFR 1520.7) are those subject to the TSA SSI strictures. You mention above about TSIs, but I found it more than just amusing (as it had legal implications) when one TSI at DIA didn’t even know what a “covered person” was and, because of such lack of knowledge, violated the law.

Those statements are not accurate as to the “current state of the” law. As an attorney, I have had a number of interactions with TSA legal and airport authority legal about different issues. My statements comport with those discussions and the law.

Why would you be “not at liberty to specify those occasions”? Are you a “covered person”; is that info SSI?

International arrivals from all countries except for “15 air Preclearance locations in 6 countries: Dublin and Shannon in Ireland; Aruba; Freeport and Nassau in The Bahamas; Bermuda; Abu Dhabi, United Arab Emirates; and Calgary, Toronto, Edmonton, Halifax, Montreal, Ottawa, Vancouver, and Winnipeg in Canada” are required to go through a screening checkpoint prior to being admitted to the sterile area (or being escorted out of the airport without screening if they wish to exit and the design of the airport does not permit such without entering the sterile area). With respect to the screening requirement of passengers, you need to take into account 49 USC 44901(d)(4)(B).

Where did I state that “certain SOPs do not exist”? As I noted before, I gave one example, the Screening Management SOP, which does not address searches outside of the screening checkpoint or when boarding a plane. Plenty of TSA SOPs exist, but I am pretty sure that no TSA SOP permits searches of passengers in the sterile area pursuant to the administrative search exception outside the two places noted. Do you have the evidence to show my statement to be false?

You make the overreaching statement about the TSA being able to “search any place in the airport at any time” (does “place” include “passengers”?), but then you use the amorphous “within the context of the security program”. What type of “context” is imposed by “the security program”? Does “the security program” address searches of passengers in the sterile area other than what I have noted?

But 1540 is with respect to the direct obligations applicable to passengers (and that is who we are discussing primarily). To believe otherwise is in direct contradiction of the above-noted law review article. You are correct, however, that it is “not the only passage” with respect to covered persons, but I have never said otherwise as it is not relevant to the discussion at hand.

Sure, 49 CFR §1540.107(a). Why would the TSA impose this limitation in the regulation if it is meaningless? Why didn’t the TSA state the screening checkpoint and anywhere in the sterile area? The TSA could have drafted (or subsequently amended) the CFR to include all of the sterile area. It didn’t and it hasn’t. Why do you not have any examples where the TSA has gone beyond §1540.107 with respect to passengers. I believe this to be a case of the dog that didn’t bark. Do you have any examples where TSA has said they have the authority under the administrative search exception to conduct a search of a passenger at a place other than the screening checkpoint and when boarding an aircraft?

The TSA views its administrative search authority of passengers as being limited to the screening checkpoint and when boarding an aircraft. Every anecdote I am aware of has comported with this reading of the law. What examples do you have that this is not the case?

So then you believe that while CBP needs consent to just see ID in the sterile area, TSA can physically search any passenger in the sterile area at any time and without their consent? Could TSA have demanded and required presentation of ID by every passenger exiting the airplane (but CBP could not)? After all, an ID check is certainly less intrusive than a physical search.

It’s a lot more settled than you believe. The TSA does not have the authority to use the administrative search exception to conduct a search in the sterile area of a non-covered person except for if that person is proceeding through the screening checkpoint to enter the sterile area or is boarding an aircraft. That is the law.

Section 107

Yes, the TSA has the authority, and that authority has been vested in certain employees, to search anyone in the sterile, secure, or SIDA areas with or without reasonable suspicion.

The authority to inspect and search is specifically granted by a number of parts of 1540-1560 that have been previously referenced. Nothing in those parts granting the authority limits that authority to only "covered persons" (which is not a term defined for those sections).

Even though it may conduct such searches, for a variety of reasons, in practice the agency chooses by policy and procedure not to exercise its authority to search persons outside of the PSCs and secure/SIDA access point areas without reasonable suspicion. In fact, even if a TSA employee does have reasonable suspicion the TSA employee would still have a LEO with powers of arrest from an AHJ there at the inspection/search. But choosing not to exercise an authority does not mean the authority does not exist. As far as I know this authority has not been challenged in any court so it is untested (but note the authority to conduct searches at the PSC has been challenged many times and has always upheld). Would a challenge to this other authority survive scrutiny? I strongly believe so.

Re: "covered persons" - this term only applies to the part about persons and SSI; it does not apply to the parts regarding persons in the sterile, secure or SIDA areas. If the term in 1520 were intended to be used in 1540-1560 as you apply it then it would have been included in the terms defined for those parts. It’s reasonable to me that a TSI would not know what a covered person is if you asked him about a term regarding SSI but was applying to presence or requesting to be present in the sterile, secure or SIDA areas. Applying the term from one section for another in which it was not intended nor defined just serves to confuse the discussion.

The passage from "a day in the life" is a nice anecdote but it is not authoritative about the law (even as it does provide a little insight into policy and procedure). However, if passengers were not regulated persons then how would the agency being issuing fines to pax for violating the regulations?

re: no other SOPs: It seems I wrongly took your statement, "Screening Management SOP only discusses the screening checkpoint and has one small section on gate screening. Note there is nothing about searches any other place" as implying that there are no other SOPs regarding inspection and searches in other parts of the airport covered by the security program.

Perhaps you do agree there are SOPs that cover inspections and searches in areas other than the PSCs....?

The part about “in the context of the security program” is important because TSA is only authorized to conduct searches and inspections in relation to the security program and not for reasonable suspicion of a crime.


re: my question: "Please share any examples of TSA saying its authorities to conduct inspections and searches are limited to only to passengers only at screening checkpoints and only the when boarding an aircraft" and your answer: "Sure, 49 CFR §1540.107(a). Why would the TSA impose this limitation in the regulation if it is meaningless?":

1540.107 only says a person wishing to enter the sterile area or board an aircraft must be screened and inspected (searched) and present certain information. It does not, as you suggest, restrict searches to only the PSC.

It does, however, state the screening and inspection must occur "in accordance with the procedures being applied to control access to that area or aircraft". As noted before, the TSA specifically has the authority to inspect and search anywhere, anytime to ensure and enforce compliance with the security program (i.e., the procedures in place for a particular area). That absolutely means they can search anyone in the sterile area to ensure compliance or to enforce the procedures in place for that area (which means the entire area and not just immediate vicinity of the PSC). A search to ensure and enforce compliance is, of course, an administrative search and does not require reasonable suspicion. It is the justification for gate searches which are conducted regularly. There is nothing in the regulations that dictates such enforcement and compliance searches must be conducted only at the gate. Reading such a limitation into the regulations is wishful thinking. But, as stated above, TSA choosing to have policies and procedures regarding where, when and why such searches are conducted that are more restrictive than the law permits does not mean TSA does not have the authority to do otherwise.

By the law and regulations cited previously, TSA has authority that CBP does not. There is other law that regulates CBP activity. In this situation CBP was acting in response to a request from another LEA regarding a detainer.

Theoretically, the sworn LE elements within TSA could have assisted the agency requesting the detainer instead of CBP but I am confident TSA would not do so except in the most unusual and exigent of circumstances.

ND Sol

There is a basic constitutional construct that if you do not agree is true, then I would just be tilting at windmills for the rest of our discussion. If the government is going to abrogate an individual’s constitutional right, then the 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. The inquiry does not start with TSA having broad authority to conduct searches of passengers and then what regulations limit that authority. It is, in fact, just the opposite. If you disagree with the foregoing, then you will never understand this legal maxim and we will never reach even clarity (much less agreement).

The notice through which the TSA articulates this authority and is specific is 49 CFR Part 1540, Subpart B – “Responsibilities of Passengers and Other Individuals and Persons.” Specificity as to passengers is not contained otherwise. Those are the TSA’s rules regarding what air travelers must do to comply with TSA regulations. As a passenger, the other parts you cite are not directly applicable to me especially with respect as to an abrogation of a constitutional right.

You note the administrative search exception for sobriety checkpoints. In many states, including my own, they are illegal if not unconstitutional. The following is in line with the reasoning I have noted throughout:


You left a number of questions unanswered for unknown reasons:

• Are you a “covered person”? I believe that you are, so I would suggest you running your opinion by your legal department before you continue your position that has no basis in the law.

• Do you now agree that 49 USC 44901d(4)(C) does not stand for the proposition you were asserting? Can you note any instances in which this provision has been implemented with respect to a country?

• Do you have any examples where the TSA has conducted administrative searches of passengers other than at the screening checkpoint or when boarding an aircraft?

• Do you have examples of SOPs that support your position?

• Does “the security program” address searches of passengers in the sterile area other than what I have noted?

• Why would the TSA impose a limitation in its regulation if it is meaningless? Why didn’t the TSA state the screening checkpoint and anywhere in the sterile area for administrative searches? Why didn’t the TSA draft (or subsequently amend) the CFR to include all of the sterile area?

• Could the TSA have demanded and required presentation of ID by every passenger exiting the airplane at JFK (but CBP could not)? If so, on what legal basis?


What are the “variety of reasons” that the TSA has decided not to exercise its authority to search persons outside of the PSCs and secure/SIDA access point areas without reasonable suspicion.”? How can an “authority” be challenged if it doesn’t exist in the law and no passenger has been subjected to it? Your statement creates a false narrative.


Did I ever say that the incident regarding “covered persons” related to searches? It did not; it related to SSI, so the TSI should have known about it.

There is a difference between those employed by “regulated entities” or the government on the one hand and regular passengers (or those going to lounges, guardians accompanying minors to the gate, etc.) on the other. If you don’t like the term “covered persons” to differentiate between those categories, what term would you propose?

First, the term used in the article was “regulated entities”, not “regulated persons”; so that is a major disconnect and, as such, was not meant to include natural persons (which is why the term “entities” was used). Second, you are conflating the two duties noted in the article. One is inspecting “regulated entities” and the other is assisting at screening checkpoints when there is an issue with a passenger. Under the CFR, the TSA has the authority to issue civil fines to passengers for violating regulations – but the passengers must have proper notice of those regulations, which are contained in 49 CFR Part 1540, Subpart B.

Do any of them cover administrative searches of passengers in the sterile area other than when they are presenting themselves for boarding at the gate? If so, please provide the language contained in the SOP.

The TSA is “only authorized to conduct searches and inspections” as permitted by law and regulation. If an administrative search is to be done of passengers, we need to have proper notice of the law and regulations, which (for the purposes at hand) are contained in 49 CFR Part 1540, Subpart B.

Are you saying that “the sworn LE elements within TSA” could have demanded IDs in this situation when CBP could not? What basis in the law do you have for making this statement?

As I noted above, the TSA has yet to amend the CFR to make all of the sterile area subject to the administrative search of passengers strictures (though they did amend it as recently as last year for other matters). The “justification for gate searches” when one is boarding the airplane is specifically contained in the noted CFR. The only other gate searches that I am aware of were for liquids testing and those were done by consent. You have yet to come up with one anecdote that confirms your belief as to the law. On the other hand, I have shown you how the TSA lives within the noted search strictures.

What is “wishful thinking” is your belief about the breadth of TSA’s authority to conduct administrative searches of passengers. The TSA does not have the authority to use the administrative search exception to conduct a search in the sterile area of a non-covered person except if that person is proceeding through the screening checkpoint to enter the sterile area or is boarding an aircraft. That is the law.

Section 107

Asked and answered, counselor. I stand by all my previous responses and it seems clear we are now just talking in circles. I know what I know; you know what you know. You will not concede that the TSA has more authority than you would like. I will not concede that it has less than I believe it has and more importantly, less than TSA believes it has (even if it chooses through policy and practice not to exercise all of it).

I do agree with your understanding and interpretation in general about the 4th and admin searches. But I also know the courts for many decades have given the gubmint extra deference in particular to administrative searches at airports and I see no reason why they would not continue to do so.

Eventually this issue will be tested in a court and then we can dig this thread up and inshallah gloat and congratulate the other on who was correct. 

Section 107

Upthread there was a request for proof of a TSA sign indicating subject to search in the sterile area other than at a PSC or at the gate. Here is one example from an active access point to the sterile area at a Cat X airport.

Boggie Dog

The sign says a person attempting to access the sterile area through this access point is subject to a search. That means right here and now, not 30 minutes later after having entered the sterile area.

Also interesting, Passengers are subject to a search, employees are only subject to an inspection.

Section 107

Sorry, but you are adding words to the sign that are not on the sign itself. In turn, you are incorrectly interpreting that it means only "right here and now."

It means exactly what it says - a person who accesses the sterile area using this doorway is subject to search. As this an unattended door for airport worker access to the sterile area that means the searches/inspections can occur at any time after accessing the area. And in fact, that is how TSA, Operations and the airport authority Police Department interpret the sign both in policy and practice.

Yeah, the difference in language is interesting and I have not entirely determined if that is merely a difference without distinction or not. working on it.

PTravel

Have you read the statute? I just did. All it does is authorize the Executive to implement policies and procedures that have specific goals. It does not mention specific procedures, nor does it mention searches within the secure area.

This is what is called "enabling legislation," a delegation of Congressional responsibility to the Executive to promulgate regulations. It is not an exemption from the Constitution, nor is it license to do whatever the Executive wants until the Judicial branch says, "no." Every government officer takes an oath to uphold the Constitution, and that oath includes not implementing regulations that violate the limits on government power imposed by the Constitution.

If I didn't have to be somewhere at a specific time and a TSO insisted on searching me in the sterile area after I'd passed perimeter screening and when I wasn't boarding a plane, I'd refuse as I believe such searches to be violative of the Fourth Amendment prohibition against unlawful search and seizure.

Boggie Dog

I agree the sign means exactly what it says and I think you are interpreting the sign to mean what you want it to mean.

The sign doesn't say "subject to search while in the sterile area" but "subject to search accessing the sterile area". Once you have accessed or entered the sterile area you are no longer attempting to access or enter the sterile area since that has already been accomplished.

And there is a clear difference in what type of search versus inspection that TSA intends to subject non-employees too, I just don't know how TSA defined Search and Inspection.

ND Sol

If they had been "Asked and answered", I wouldn't have had to ask them again, such as are you a "covered person"? None of the ones I asked in my prior post have been answered.

Exactly what evidence do you have that the TSA believes it has more authority than what I have proffered?


First, as others have pointed out, the statute does not say what you think it does, especially since we are discussing passengers.

Second, as others have noted the language is applicable to entering at that point, not to later. The sign proves my point, so thanks for posting it.

Third, the sign is not at a passenger screening checkpoint, so it is not applicable to the question at issue.

Fourth, how do you know "how TSA, Operations and the airport authority Police Department interpret the sign both in policy and practice" and is this interpretation with respect to passengers as well? Did you also check with legal?

Fifth, PTravel (also an attorney), without any prompting on my part, also vitiates your view about searches of passengers in the sterile area. His view is aligned with what I have stated.

Sixth, the Federal Government already has signs that are clear about where a person can be searched. The TSA could readily use that language if it had the authority for those searches. But the TSA doesn't have that authority and, as such, the sign would be false.

Section 107

Good people can always disagree on what a law says/means. What is important here is what does TSA (and airport operators/law enforcement) believe the law says. I have stated what I know they* believe; you believe they are wrong in their belief. That’s fine. One day someone will get some standing, bring an action and we will get to see what the courts decide. [but see final comment]

*no, I am not claiming to be a spokeshole for the TSA, nor do I work for TSA, and clearly I cannot and do not speak for anyone other than myself. Rather, I am sharing what I know, and believe, to be the understanding of persons responsible for executing airport security programs.

Words are important and it is the very essence of a lawyer’s stock in trade to argue what words mean (famously, or infamously, one of our presidents, a lawyer, once hinged an argument on the definition of “is”). So I fully appreciate that in support of your opinion you are arguing the word “accessing” on that sign is limited to mean (1) a person is subject to being searched only during the actual act of entering into the secure area through that door (i.e. while crossing the doorway threshold) and (2) once the person has thoroughly crossed the threshold and is in the secure area that person is no longer subject to search while in the secure area. But let us not be so literal and limit it to meaning only while actually crossing the threshold; they could also be subject to search in the immediate vicinity of the door say, within 36, or 48, or even as much as 60 inches past the threshold and inside the secure area. But any more distance from the door after that? No way, Jose.

But, come on, let’s apply a little common sense. It is posted at an unattended door – there is no checkpoint at that door and no screening takes place there. The clear intent of the sign is to inform persons that if they enter the secure area through that door (where they were not searched upon entry into the area) then they might be searched at some later time when they are away from that door (as it is extremely unlikely anyone would enter through the door and then just stand next to the door for any significant amount of time or return to it to be searched). Any other reading, I posit, is simply not common sense.

The sign IS applicable to the main question at issue (which is whether the TSA has authority to conduct searches anywhere in the sterile/secure/SIDA areas). In my opinion the sign is clear evidence that TSA believes and operates under the belief that it has authority to search and inspect persons away from a PSC or established screening checkpoints for airport workers for entry into the secure areas - in other words, anywhere within the sterile/secure/SIDA areas.

I agree with PTravel, it is only the legislation and does not specify procedures (which are detailed in the security program). PTravel is also correct regarding the hypothetical search by a TSO. However, a search by a TSO is not the issue. The issue is can TSA search and I have stated unequivocally several times that TSOs cannota way from the PSC or worker access points but certain other TSA employees can search and inspect anywhere in the areas under the security program.

While the properties might seem similar, the laws and regulations applicable to property owned by the federal government for national security/military purposes are quite different from laws applicable to property not owned by the federal government (in fact, only 2 commercial airports in the country are owned by the feds). So signage regarding the applicable regulations understandably may be different. Having said that, you are absolutely correct that TSA could have used other language that is more clear regarding subject to search on this sign and the choice of language might indeed reflect limitations imposed by applicable law. But the signs are not the law and I refer you back to the aforementioned laws/regulations that give the TSA authority to search (which, of course, you disagree they grant that authority) and we are back in circles…..

I appreciate and enjoy the tenacity, but questions about me are simply not germane to the issue of whether TSA has authority to search and inspect persons inside the sterile/secure areas. As I have said before, I agree in general with you in regards to the 4th and the exemptions for administrative searches. But when it comes to airports, and in particular the areas under the security program, the government operates under a different understanding of the rules from the general rules of administrative searches.

And I have no doubt that if and when the outcome of a search of a person (any person - pax or worker) in the secured/sterile area is challenged in court, the courts will uphold the government's actions.

[In truth, I suspect the government does not want a court to actually to rule on this and the courts will bend over backwards to find a reason to dismiss and we will never actually have this question settled.]

WillCAD

Though I'm sure TSA has kept the language of their signs, and those who wrote the legislation kept the language of the statute, intentionally vague so as to justify any future expansion of their searches they may wish to implement, the language of the sign is clear to me:

WHO: Any person accessing the secure or sterile area of the airport through this entry point

WHAT: Is subject to search by the TSA...

Once you're in the secure or sterile area, you're not "accessing" it "through this entry point", you're already inside it. Ergo, you're no longer subject to search by TSA.

I have no doubt that TSA and many TSOs would vehemently disagree with this assessment and assert that TSA does, indeed, have no limits on the scope or methodology of their searches within the sterile area - indeed, they seem to think there are no limits to the scope and methodology of their searches at the checkpoint, which is blatantly counter to US vs Davis - but if this is ever challenged legally, I seriously doubt that any Circuit, or the SCOTUS, would agree with TSA's assertion.

As Ptravel said above, searches of travelers by TSA, except when attempting to enter the sterile area or board an aircraft, are violations of the 4th Amendment, not covered by the Administrative Search exception.

PTravel

I think you may have missed my point. CFRs are made by the agency, itself. TSA, like every other arm of the government, is restricted by the Bill of Rights with respect to powers that are denied to it. One of those powers are unreasonable search and seizure. The courts have held that limited, administrative searches at the entry point to sterile area, provided they are limited in scope to WEI, are not violative of the restrictions on government contained in the Fourth Amendment. I'm not aware of whether courts have ruled on "on boarding" searches, but I suspect that, subject to the same limitations, they would be held constitutional. However, searches in the sterile area, whether by airport police, "other TSA personnel," or the FBI are, at this point in time, not legal UNLESS they are (1) a "Terry stop-and-frisk," which requires, at least, a reasonable, articulable suspicion to support the initial detention, (2) coincident to an arrest, which requires probable cause, or (3) with a warrant.

The sterile area of an airport is NOT some kind of "exempt from the Constitution" special area. It seems that many (and, possibly, yourself) do not understand what a constitutional limit on government power means. When this country was founded, we ceded certain limited powers affecting fundamental rights to the government. However, all other rights are reserved to people and are inviolate -- the government does NOT have power to trespass upon them. The Bill of Rights is a non-exclusive list of powers that are expressly denied to the government. Among these powers is the power to trespass on, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . ."

TSA can say whatever it wants, hang whatever signs it wants, and implement whatever CFRs it wants. Even if it had a CFR that said, "Passengers in the sterile area are subject to search anywhere, any time, for any reasons," such a regulation would be presumptively unconstitutional. It doesn't matter what the CFR says. For that matter, it doesn't even matter what a statute, enacted by Congress, says. If it usurps a power expressly denied to the government, it is unconstitutional, unlawful, invalid and void.

What I have described is orthodox constitutional jurisprudence. There are some in this country (in the interest of avoiding redirection of this thread to OMNI/PR, I won't say who) who think that Congress or the Executive should be able to decide what is constitutional. They are simply, unequivocally and unarguably wrong.

TSA CANNOT conduct random searches within the sterile area, except in the three situations I have identified. Period.

ND Sol

They became germane when you opened the door asserting your personal knowledge about the TSA and its workings without any back-up. You provided just your unsupported statements, which is why it became important to understand your ability to speak authoritatively as to those positions. Here are just some of the statements you have made in this thread:


Balderdash. The TSA does not have the authority to use the administrative search exception to conduct a search in the sterile area of a passenger except if that person is proceeding through the screening checkpoint to enter the sterile area or is boarding an aircraft. What PTravel posted is on all fours with what I have been saying for over two months in this thread (and for years in other threads).

TWA884

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TWA884
Travel Safety/Security co-moderator