bocastephen

Since only real law enforcement can detain you, absent their presence, there is nothing to stop you from flipping off the screeners, grabbing your stuff and walking out - they have no legal authority to stop or physically detain you.

Until the police show up (which might not happen in time if you move quickly), you're pretty much in the clear. If the police do catch up with you after the fact, you can just say you refused to be physically accosted by the screener and wanted to leave.

TamCaP

Could they claim citizen's arrest (detention in NC) at this point?

bfetch

Thank you for correcting me. I didn't realize it was due to him not providing ID to fly (too bad his attorney didn't feel up to challenging that too).

Though you did corroborate my insistence on where & why TSA is now insisting on you consenting to the screening when opting out.

Per the ruling, Aukai consented by walking through the WTMD.
You consent when you opt-out and then agree when asked "Do you consent to this screening?" thus starting the "screening process".

I'm not certain of the validity (remember, IANAL) but they seem to be attempting to rationalize a civil proceeding using criminal decisions as basis. And as you've noted, would need to then follow through the appropriate Administrative Procedures Act steps to ultimately enforce an approved regulation.

Baby steps...I hope these are just baby steps to getting the f'in TSA in front of any congressional committee to oversee and approve (legally) what it is they're pushing. Rulesmaking in a vacuum results in airheaded regulations.

pmocek

Or, upon finding that a police officer is conducting an investigation of your activities, and knowing that police often talk people into saying things which are detrimental to their well-being, you can say nothing (though in some states, you must identify yourself).

ND Sol

That requirement is to provide the information to the "covered operator" (i.e. the airline) and not directly to the TSA.

bocastephen

No. Citizens arrest is for very limited crimes and circumstances....leaving a security checkpoint and ignoring an unlawful order is not one of them.

Very good advise - but a simple one sentence statement about declining the patdown and then clamming up thereafter. Once they hear the whole mess is about the patdown, they might be inclined to waive you on your way - which is essentially what happened in San Diego.

RichardKenner

Note that the argument in Aukai would not apply in the case of an opt-out in an AIT-only checkpoint. However, I don't think there are any such yet.

PTravel

I think it's coercion. I would simply keep repeating, "I will not interfere with your search. However . . . "

Short answer: no. There are certain circumstances in which this can occur, for example, compulsory military service.

I don't have a problem with providing my name -- they get that anyway from the boarding pass. I would not provide my address, phone number, employer, etc.

pmocek

Only if you're using a boarding pass that is associated with a ticket that was purchased in your name. That's likely now, but for those who aren't aware: Just a few years ago, it was not safe to assume that such was the case. The airline doesn't need to know who you are, and TSA staff don't, either.

jackal

FWIW, I was on a jury that ended up convicting a man on three counts of sexual assault even though the victim gave her consent because we found it to be coerced consent (he had a gun and waved it at her).

Obviously, my experience really has no legal or common law bearing on this particular case (completely different jurisdictions and completely different laws and situations), but just because consent is verbally given doesn't mean the person willingly consents.

TSA may not be waving a gun at you, but they are in a position of authority, and if you now are forced to give your consent under threat of a substantial fine for not allowing consent (since you can't back out altogether), then perhaps a jury will find that consent was not given willingly.

bfetch

That's what's nice about the Internet - you can always counter someone else's point.

I'm willing to presume they (TSA) are intentionally misconstruing an obviously criminal decision with this 'still civil proceeding' (until the arrival & detainment of PAX by an LEO).

I can't claim your position is incorrect however there must be something they're using as the basis for their argument of insistence on receiving consent to the search and being unable to rescind said consent after the "screening process" has started.

RichardKenner

That was modified for SecureFlight and it's clear from that fact and the context that (b)(2) means a request other than for the purposes of flying (e.g., a gate pass). Specifically, "request" doesn't mean presenting oneself at the checkpoint, but requesting a document that would authorize access.

I agree, and have said essentially this before. Auka is an Exclusionary Rule case, nothing more.

Except that the TSA's argument is that consent was given by the act of going through the checkpoint. The downside of all the recent publicity on the details of the pat-downs unfortunately means that it's getting harder for people to claim they didn't know what they were consenting to.

Savvy Traveler

But what has not been tested in court is this new pat down procedure. I can agree that I'm consenting to an administrative search at a TSA checkpoint. But I would make the argument that these new molestation pat downs constitute something far greater than an administrative search, and are therefore beyond the bounds of TSA's authority.

LuvAirFrance

Isn't there any requirement of public comment for these changes as there would be for anything else affecting the interests of the public?

sbagdon

Not to my knowledge.

Public comment brought up here:

http://www.cnn.com/2010/OPINION/11/1...ex.html?hpt=T2

To begin, we are a country that believes in transparency and the importance of the government listening to the people. In our country, when a federal agency undertakes a substantial change in its activity such as making body scanners the primary screening technique in airports, it is required to give the public a formal opportunity to comment -- and it must take those comments into account. Issuing press releases is no substitute.

EPIC and a wide range of organizations repeatedly urged Homeland Security Secretary Janet Napolitano to create this opportunity for public comment, but the secretary ignored our requests. In her view, her agency, unlike other agencies in the federal government, did not have to follow that law. That is why we turned to the courts.