Are you channeling Francine since she had the same tortured reasoning years ago, which failed then and still does now.

Here is my exchange with Francine the TSA Chief Counsel about this very matter (and the reason she is now Francine the Googling attorney):

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.

From 2004? So what is the authority for presenting IDs at checkpoints in there?

Does Gilmore stand for what you think it does? Let me pose a hypothetical (which has happened in airports). A passenger has no identification, nothing with his name on it except his BP. A verification process which asked him questions such as past rental history, credit history, etc., failed to identify the passenger. A complete and thorough search of his person and property is made without finding any WEI. Will he be permitted through the checkpoint and allow to fly?


Amazing that somehow you think this is a poor horse being beaten when you have yet to proffer the authority in the C.F.R.s for the TSA to check IDs at the screening checkpoint.

ETA: I just found where TSORon discussed this previously to which I replied over three years ago, and although he replied to others about other matters in the thread, he never did address my analysis.