My plan: a negotiated conditional patdown
 

My tentative plan for the next time I fly is to opt out of the scanner if selected, request a private room, and try to negotiate a modified pat down. This is what I would say to the TSO who would be doing the patdown :

I will consent to a "pat down" but only under the following conditions:

1. No contact with my testicles or penis.
2. No contact with my anus or the inside of my butt crack.
3. No contact with the inside of my waistband or any bare skin.

If you agree not to touch my testicles but go ahead and do so anyway you can be prosecuted for "Indecent Assault and Battery on Person 14 or Older", Chapter 265, Section 13H of Massachusetts General Law with a penalty of up to 5 years in state prison. And I would press charges with the Boston Police immediately.

If the TSO does not agree to the conditional patdown. IOW, if he believes that he must "touch my junk" then I was thinking of offering him a gratuity (to express my appreciation) of up to the change fee for my plane ticket, probably somewhere between $50 and $150, in order to perform the non-genital, non-anal patdown. This is pretty risky though and probably not feasible if there are any witnesses around. Hopefully the private screening room would be private enough. Then if he tries to have me arrested for bribery it would just be my word against his.

If necessary I would allow the waistband/bare skin rub but only if he is willing to wash his hands or use an alcohol rub before changing gloves and only sticking his finger no more than the first segment of his fingertip or 1" below the waistband, whichever is shorter, and only if he does not pull out the front of my pants and peek at my package.

If he refuses the conditional patdown + (optional) bribe then I would of course opt out and be escorted from the airport by an LEO, at which point I would call the airline and reschedule my flight and try again in the hope of not being selected for the scanner next time. Rinse, repeat, and seriously consider moving to a country with more freedom. I'm wondering if I should write down the conditions under which I consent to a pat down and ask him to read it and maybe even sign it to indicate that he understands.

I like the first part, but I would skip the bribe part. If you insist on the bribe then make sure you're recording it.

The bribe is a horrible idea and will rightly result in your lawful arrest.

how so? TSO's arnt cops and therefore have no authority for an arrest.

They still count as federal agents though for the purposes of a bribe I would assume, making the act illegal.

The TSA can call real law enforcement to.

Not going to work. The TSA negotiates with no one.

That right! "Do you want to fly today?" There is no negotiation. It's "TSA way" or highway!

LAX

That was exactly the sort of feedback I was looking for. I have to admit that you are almost certainly right about that. Negotiating with a fare would at the very least be a sign of weakness. However from the reports I have seen it seems that not every TSO is doing the super-invasive patdowns, although the vast majority of them probably are. I guess the hope would be to identify when I have gotten lucky and landed a TSO who never had any intention of doing those things anyway. But even those people may get scared off by the formal list of conditions.

For practical purposes I would have to pay the extra money for a fully refundable ticket and just assume that I would have to double opt out 4 or 5 times for each planned US departure before getting lucky enough to make it past security unviolated and with my dignity intact (WTMT and no patdown).

A better option for people like me who unconditionally refuse to be porn-scanned or sexually assaulted might be to make a serious effort at trying to get a connecting flight from a smaller regional airport without a porn-scanner. The problem with that is getting picked for a secondary screening regardless. That seems to happen to me a lot. It really is very difficult to win this fight. No matter what we do I think we are left with the prospect of multiple double opt outs for each departure.

I'm not exactly sure why anybody would think that saying "you can pat me down, but you can't touch these areas" makes much sense. If you could do that, then there wouldn't be much point in doing the pat-down at all since you could have hidden objects in the area.

And I think that's the fundamental problem with the whole system. If you go for a protocol the depends heavily on pat-downs, you have no choice but to get into issues like "we can't exempt any part of the body" or that once you "find" something, you have to know what it is (e.g., a medical device or personal hygiene product). There's absolutely no point in doing the pat-down if you're not going to check the entire body or investigate anything it finds.

And I think that metal detector technology isn't useful now that the primary threat is explosives, not knives and guns. ETDs have their own limitations.

To me, I think this is pointing towards a much larger debate, which is about the fundamental nature of airport security and the inherent privacy vs. safety issue. I don't think that it makes sense to "nibble along the edges" of that debate.

I tried negotiation and compromise, and I got nowhere!


On November 20th, I was leaving Norfolk, Virginia for Seattle (on my way to Alaska for my niece's wedding. BTW- I am a middle aged white woman. I went through the metal detector with no problems, except they asked me to remove the jacket of my travel suit, which I did. Then I was approached by a woman TSA agent who asked me to go to a glassed in area. She then told me she was going to feel inside my waist band and then pat me down, including touching my crotch area. I said I was not comfortable with this and I would like to talk to her supervisor. The supervisor came over and said that "this is our procedure". I got loud at this point saying that I considered touching my crotch to be sexual assault. He said that it was the only way that I would get on the plane. Then he called his supervisor, for who I had to sit and wait. He gave the same answer "this is our procedure". I asked why I was being searched like this and was told it was that I had "baggy pants". The pants were made of a stretchy material for travel but were not oversized. I asked if I could go to the private room and remove the offending pants. I was told that they were going to do the procedure no matter what I had on. Leaving me no choice but to miss my plane and the wedding I submitted myself to the "procedure" which did include firmly feeling my crotch. I was traumatized by this experience and so shaken that I was crying and could hardly speak as they handed me the "complaint form" that I requested. The refused to give me the agents name other than "Angela". They said that they were not required to give last names.

I don't know where anyone gets the idea that it is possible to negotiate and compromise with TSA.

The complaint form is worthless; I suspect they just throw them away. You should add your story to those compiled by the ACLU at this link (scroll to bottom of page):

http://www.aclu.org/passengers-stories-recent-travel/

Unfortunately there are many hundreds of stories like yours. Please write to your elected representatives and report what happened to you. And please consider not flying again until this lunacy ends. If you do stay grounded, please write to your preferred airlines and hotels explaining why.

This is an excellent point. Another reason why I have given up on the negotiating idea. I'm either going to Double Opt Out and try again another day until I make it through, or I am going to passively submit to the patdown and when the TSO touches my balls immediately request an LEO. I won't give the reason. I will then ask the LEO to arrest the TSO under charges of "indecent assault and battery" (if flying out of BOS).

Luckily Angela is not all that common of a name in the US. It would probably be enough to positively identify her. I would encourage you to contact a criminal attorney about this. Tell him that you would like to press charges against Angela if there are any laws in your state against that sort of touching. You should also investigate for yourself. Google the name of your state and things like +sexual +assault, or +sexual +battery, or +indecent +assault etc. There is also the following federal law:

Since it is a federal law I don't know if we can use that one. It is very important that those of us who live in states with sexual/indecent assault laws (not California) start prosecuting the TSOs. That is IMO by far the most likely way of stamping out this molestation in the name of security.

I am considering the idea of something like this:

TSO: I am now going to [blah blah blah]
me: If you have any plans of touching my genitals or my butt crack would you still do the patdown if I were to tell you that I am planning to call over an LEO and press charges for Indecent Assault and Battery?

Note that I haven't actually refused the patdown per se which I assume means that they still have to do one. Lets continue the hypothetical conversation.

TSO: Do you want to fly today?
me: Yes. That is why I am not refusing the patdown. Although neither am I giving you explicit consent. It is my understanding that no form of explicit consent is required. I am merely advising you of what is about to happen out of concern for you as a fellow human being. Consider what 5 years in state prison and being put on the sex offender registry would do to your life. I thought it was only fair to warn you.

Initiating that dialog would likely be enough to get you arrested. TSOs aren't law enforcement professionals, legal experts, or even logicians. Don't do this unless you want to miss your flight.

How is this any different from the "don't touch my junk" episode?
And how do you expect it to end any differently?

http://www.flyertalk.com/forum/trave...ened-suit.html

Federal law applies everywhere. The problem is that what you posted is a definition, not a law. I don't see how there could be a Federal law against sexual assualt since all such laws are in the perview of the states. I'd guess that the definition is used in a context where state laws wouldn't apply (e.g., on a ship or plane).

To clarify, I would fully expect that dialog to end in my being escorted from the airport by an LEO eventually. I am assuming the result would be a Double Opt Out (the same as the "don't touch my junk" guy). The only difference is I would remind them that I am not in fact opting out of the patdown. They can go ahead with it if they feel it is legal and are not worried about any criminal charges. It's a subtle difference. I would be doing it as an experiment to see how much I can warn them without stopping them from actually doing the patdown. Phrases like "I will consent to any further reasonable search in order to get on my flight, but I will not consent to Indecent Assault and Battery, MGL Chapter 265 Section 13H.

The next time (after rescheduling my flight) I would just say nothing at all when the TSO told me what he was about to do and if he goes ahead and "touches my junk" I would immediately call over an LEO and press charges for indecent assault and battery. And yes that would mean missing my flight and going to the police station. I would assume that the TSO's attorney would go with the "implied consent" defense so these sorts of subtle consent issues might make a difference in getting a conviction.

Actually, in pragmatic real-world situations, Fourth Amendment legal protections are suspended at airports right now. That's the crux of what we're arguing about -- whether TSA has the power to suspend or rewrite federal law unilaterally at locations and times of its own choosing. So, no, if federal law applied everywhere we wouldn't all be so exercised about TSA.

FWIW, here are some links for the federal "Abusive Sexual Contact" law:

http://codes.lp.findlaw.com/uscode/18/I/109A/2244

http://www.law.cornell.edu/uscode/18/usc_sec_18_00002244----000-.html

Most of it requires sexual intent, but note section b:

[emphasis mine]

Seems interesting, but it's really only an issue if you live in a state like California that doesn't specifically have any laws against genital touching without sexual intent. Not being a lawyer I have no idea whether you can prosecute under federal law if there is no state law that directly applies.

You can apply the law of any juridiction containing the area where the event happened. But that law you cite only applies, as it says, in special jurisdictions (such as on ships).

As to BearX220's comment, the Constition and Federal law aren't the same. And also, nobody claims that the 4th Amendment doesn't apply at airports: that amendment doesn't prohibit all searches, just some, so the legal issue is whether the search is permitted under the 4th Amendment or not, not whether the amendment itself applies!

I would assume that would include military bases and other federal reservations. Could it stretched to the checkpoint?
When Pissy said:
"Nobody likes to have their 4th Amendment violated going through a security line, but truth of the matter is, we're gonna have to do it."
He told us that this is not a reasonable search. Otherwise there would be no violation happening.
http://www.youtube.com/watch?v=nArQTg88k6U

Well, federal statutes must be constitutional, that's all I'm saying.

As for the Fourth Amendment and airports: this has all been discussed in detail elsewhere in this forum, but airport checkpoints are designated administrative search areas where by entering you're deemed to have agreed to the kind of search-without-probable cause you don't have to undergo in other public areas. (In other words, you have to put your bags on the belt even though you've done nothing to suggest you're a terrorist.) That in itself is extra-constitutional, but we've long accepted it. The question now is whether peering inside your underwear, stroking your sex organs, etc. coupled with threats of arrest or large fines if you demur or even simply try to exist the process can also qualify as reasonable "administrative search." Betting is that it certainly does not, especially as so many TSOs have conceded the patdowns serve no security function -- they are performed simply to cause psychological violence to the subject.

In other words, we know the checkpoint is a zone where constitutional strictures against "unreasonable search and seizure" don't apply. Now we're just seeing whether the government really can stroke your junk while threatening to arrest you if you don't stand still for it, all without probably cause. Wrong? Perverse? Inherently un-American? Yes, yes, yes. We're going to find out if that matters.

Oh I see. I guess I was reading it wrong. I was reading [special maritime] and [territorial jurisdiction] as 2 separate areas. I wasn't applying the word "special" to territorial jurisdiction. I was interpreting "territorial jurisdiction" to mean anywhere in the US and maybe places like Puerto Rico as well. Legal language can be tricky.

But you realize that by asking them not to check certain places they are just going to have a reason to check there. Although you might not like it you've got three choices. Use the scanner, get the pat down, or don't fly. If it's such a problem then just refuse to fly until it changes. Bribing the TSA isn't going to do anything

You cannot file criminal charges against anyone. You can call a LEO to file a complaint. It is not the same thing. The prosecutor will decide if criminal charges are warranted and what those charges would be. You are also not going to force a LEO to arrest anyone. The officer will most likely in a situation like this take statements from all involved and any witnesses willing to give a statement and write a report. The report will work through the process and the prosecutor will decide what charges if any would get filed. No one is going to leave in handcuffs, unless the subject starts to make a scene because he or she doesn't agree with what the LEO does.

FB

How about just staying at home like I am this holiday season. That is the ultimate insult to the TSA. If in time more and more people decide NOT to fly, the airlines will feel the pain.

I honestly don't think the TSA cares, however I'm happy to be home.

Generally when I fly somewhere I am moving there. As in to live. I don't take vacations per se. I can delay the flight, but it isn't really optional. Since I live near Boston I could theoretically get a flight from YUL (montreal) and bypass the TSA entirely if necessary. There are also 2 nearby airports (MHT and PWM) which don't yet have the scanners, but I'm sure that will change in time.

Also, presumably if I Double Opt Out enough times I will eventually make my flight without having to suffer either the gape or the grope.


That's what I meant. I just didn't know the correct terminology. So it's called "filing a complaint" then? Fair enough. I'll remember that. What would I actually say to the LEO? "I would like to file a complaint against this TSO for touching my genitals"?

So there's nothing I can do at all to point out that he violated a particular law?

I certainly didn't mean to imply that. I was just trying to picture what would happen if a woman reports to the police that she was raped, because of course sexual assault is a similar sort of crime. I would assume the person accused of rape would at least be formally question by the police, but I fully admit that when it comes to the law I know almost nothing.

http://codes.lp.findlaw.com/uscode/18/I/1/7

The term "special maritime and territorial jurisdiction of the
United States", as used in this title, includes:
(1) The high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and out of the
jurisdiction of any particular State, and any vessel belonging in
whole or in part to the United States or any citizen thereof, or
to any corporation created by or under the laws of the United
States, or of any State, Territory, District, or possession
thereof, when such vessel is within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of
any particular State.
(2) Any vessel registered, licensed, or enrolled under the laws
of the United States, and being on a voyage upon the waters of
any of the Great Lakes, or any of the waters connecting them, or
upon the Saint Lawrence River where the same constitutes the
International Boundary Line.
(3) Any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the
United States by consent of the legislature of the State in which
the same shall be, for the erection of a fort, magazine, arsenal,
dockyard, or other needful building.
(4) Any island, rock, or key containing deposits of guano,
which may, at the discretion of the President, be considered as
appertaining to the United States.
(5) Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation created by
or under the laws of the United States, or any State, Territory,
district, or possession thereof, while such aircraft is in flight
over the high seas, or over any other waters within the admiralty
and maritime jurisdiction of the United States and out of the
jurisdiction of any particular State.
(6) Any vehicle used or designed for flight or navigation in
space and on the registry of the United States pursuant to the
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies and the Convention on Registration of Objects
Launched into Outer Space, while that vehicle is in flight, which
is from the moment when all external doors are closed on Earth
following embarkation until the moment when one such door is
opened on Earth for disembarkation or in the case of a forced
landing, until the competent authorities take over the
responsibility for the vehicle and for persons and property
aboard.
(7) Any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the United
States.
(8) To the extent permitted by international law, any foreign
vessel during a voyage having a scheduled departure from or
arrival in the United States with respect to an offense committed
by or against a national of the United States.
(9) With respect to offenses committed by or against a national
of the United States as that term is used in section 101 of the
Immigration and Nationality Act -
(A) the premises of United States diplomatic, consular,
military or other United States Government missions or entities
in foreign States, including the buildings, parts of buildings,
and land appurtenant or ancillary thereto or used for purposes
of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or
ancillary thereto, irrespective of ownership, used for purposes
of those missions or entities or used by United States
personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supersede any treaty
or international agreement with which this paragraph conflicts.
This paragraph does not apply with respect to an offense
committed by a person described in section 3261(a) of this title.

I indicated that statements would be taken by everyone involved. You have hit on the major problem with this line of thinking to protest the TSA pat downs. There is no comparison to someone getting a pat down while clothed to a woman being raped. In most cases of women being raped, and men for that matter since that action is not limited to women, their is some type of physical evidence of the event taking place.

Law enforcement is very aware of the laws that are in play here. They are also very aware of the difference between a true sexual assault and someone using the law to protest a government action or political policy. That is why you more than likely are not going to see someone carted off in handcuffs. The officer is going to pass the situation off to someone who is much more comfortable playing the political game. In a case like this it would be the prosecutor, who in most places is an elected politician, that is going to be the player. That is why you have DA's such as the one in California stating that they will prosecute cases like this. However, if you read or listen carefully to what is said the DA, a political animal, leaves an out so that he doesn't have to follow through on his statement but it makes a great sound bite.

I understand the frustration and the reasoning behind thinking that an action such as this is a good idea. Heck, somewhere it may even work. However, don't expect much sympathy from a law enforcement officer when claiming to have been sexually assaulted at a public checkpoint in the airport. Especially, if you plan on comparing that to a women being raped. The officer in most cases has dealt with too many true victims of sexual assault to be drawn into this type of drama.

FB

Or you could attempt a citizen's arrest. IANAL but from the laws I've seen posted around FT, I wouldn't attempt one in MA though.

Yes, but one way to avoid this particular problem in the future is to understand that there is a major difference between what kinds of laws a state can pass and what the Federal government can pass. A state can pass any law it wants to as long as that law doesn't violate the state or Federal constitution. But the Federal government can only pass laws in areas where the constitution gives it specific permission to do so. General criminal codes are not one such area (drug laws are passed under the "commerce clause" and some question their constitutionality for that reason, but that's way OT here). So any law Federal law that purported to make things like assault, rape, robbery, etc illegal everywhere can't mean that. There has to be some specific Federal interest (such as here, jurisdictions that aren't in any state or where the victim is a Federal employee or protectee).

That was a very serious, and stupid, in my opinion, mistake. I think he just blew immunity for the entire workforce.