The nice thing about being a lawyer is that it costs me relatively little out-of-pocket to sue. I'm just waiting for the right set of facts.

We are saying the same thing about TSA requiring pronunciation of names, but even the requirement for passengers to present ID to the TDC (much less the TSA) is not contained in the CFR's. The requirement is to the airlines.

For matters relating to the screening for WEI (weapons, explosives and incendiaries), there is an applicable CFR. For showing the TDC your ID, not really.

Here is my exchange with Francine the TSA Chief Counsel about this (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.



So let's examine 1540.107 and see if any of its three requirements authorize the TSA to require ID at the screening checkpoint:

1. 1540.107(a) requires that no individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property. So what does that entail? Section 1540.5 defines "screening function" as "the inspection of individuals and property for weapons, explosives, and incendiaries." No TDC ID requirements here.

2. 1540.107(b) requires providing one's full name, as defined in � 1560.3 of this chapter, date of birth, and gender when the individual makes (x) a reservation for a covered flight, as defined in � 1560.3, or (y) a request for authorization to enter a sterile area. This requirement is to provide the information to the "covered operator" (i.e. the airline) and not directly to the TSA. No TDC ID requirements here.

3. 1540.107(c) requires that no individual may enter a sterile area or board an aircraft if the individual does not present a verifying identity document as defined in � 1560.3, when requested for purposes of watch list matching under � 1560.105(c). The requirement for presenting ID is for "purposes of watch list matching under �1560.105" does not occur at the screening checkpoint. If someone believes that it does, then what list is the TDC matching your ID against? This would be the airline requesting your info.


One needs to read 1560.105 to understand what the requirements really are as related to 1540.107(b) & (c) since they were added in conjunction with 1560:

So, this only has direct application to the airlines.

It is the airline that has to ask for the ID, and only under specified circumstances.

Once again, its is the airline's responsibility and only under certain circumstances.


The authority to require ID's at the checkpoints is not in the CFR's no matter what Francine the Googling Lawyer would try to make one believe. I think that there is a reason why the TSA is not involved in this process directly with the passenger.

Great post, NDSol. I would love to see someone challenge TSA in court on this basis, as this is a straight-forward statutory construction question and doesn't even implicate the constitutional concerns (other than void-for-vagueness).

It seems to be an internal program. From the GAO report:

TSA SPOT program staff told us that they consulted with experts on behavior detection and observed existing behavior detection courses before deploying the SPOT training program. According to SPOT program officials, a TSA staff member from Boston Logan International Airport attended other training programs offered by other federal agencies and private training organizations to inform the design of SPOT training.

The TSA staff member attended the following external training courses: John Reid and Associates� Reid Techniques of Interrogation and Advanced Reid Techniques of Interrogation; Massachusetts State Police Academy�s Basic Investigations and Professional Development Program Interview Techniques; International Security Defense Systems� Verification Agent for Virgin Atlantic Security Systems; New Mexico Technology, Materials and Research Center�s Prevention and Response to Suicide Bomber Indicators; Abraxis Corporation�s Detecting Deception and Eliciting Response; Langevin Learning Services� Instructional Techniques for New Instructors; Ekman Group�s Understanding Emotions and Detecting Truth; Chameleon Associates� Suspicious Behavior Detection; and Federal Transit Administration�s Terrorist Awareness, Recognition, and Response.



IIRC, the TSA starting to refer to their uniformed employees as "officers" was a change in name only, just for public consumption. I'd be interested in anything else you find.

I agree, however I am curious when these regulations were written. It used to be that one checked in at the airline's desk with a live person to receive boarding documents, hence the ID check. However, with more widespread use of kiosks and OLCI, that's gone away. Perhaps this was designed as a way to meet the requirements set forth in the regulations but also not repeal these forms of check-in?

I wish more of us had that luxury.

The Secure Flight regulations are not that old and those are the ones that require airlines to capture a passenger's name, DOB and gender and send it on to ensure that name is not on the watch or no-fly list.

The task for TSA as related to passengers is to screen them for WEI and keep prohibited items from entering the sterile area, which is what the CFR's state. No need for ID and questioning to do such.

I was referring to the checking of IDs to match BP to traveler (which the airline used to do) and the fact that with OLCI/kiosk the airlines can't do that anymore. We've had to show ID at check-in for well over a decade.

Agree about the DOB, gender and questioning.

Because that was not much more than a revenue protection mechanism for the airlines that they were probably happy to hand over to the TSA to make it look like security instead of airlines being greedy.

I have to disagree with your interpretation of 49 C.F.R. �1540.105(a)(2)
my qualms being in that it was not as strictly constructed as you seem to believe, as it did not limit the control of access to "screening" (limited to searching for WEI) exclusively...

Also 1540.107(c) would seem to be an enforcing clause to the requirements set forth in � 1560.105
yes, the operator does the watchlist matching, but the subsequent application of security procedures is contingent on the results of said matching; the transmission of this information being primarily in the form of boarding passes. So I guess they're counting reading the output as an extension of the matching process..

just a few thoughts... but then again, I'm barred having those by my management and the public... maybe if you could find a way to get TSA to follow the rule of law in really ANY case, all of us would be better off.

So, if I were to quote 49 C.F.R. �1540.107(b) when SPOTted, and just give my Name, rank, and serial number, so to speak, am I breaking the law? Will I get the dreaded "Do you want to fly today" question, etc etc etc?

The whole of 49 CFR 1540 dates from February 2002 (67 FR 8353). Section 105 has not been changed since but 107 was modified October 2008 (73 FR 64061). I wonder what it used to say.
No and yes; although I think the latter has been changed from a question to a statement, as in "you won't fly today". I don't know that that makes it any less of a threat but certainly less confrontational.
Would not the court simply point to Gilmore ? Assuming the additional procedures in lieu of ID is still an option that is.

Gilmore, as I recall, was an evaluation of the constitutionality of specific procedures and not a challenge to the procedure on the grounds of exceeding the statutory authorization. I'd have to review it, though.

How would you read it? There are secured areas, AOA, SIDA and sterile areas listed in 49 C.F.R. �1540.105(a)(2). As passengers, we only enter sterile areas. The definition of sterile area sets forth the specifics for those systems, measures and procedures for controlling access, 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.� No id requirements or questioning is listed.

A basic rule of construction is that 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.


What you stated would be correct as the denial of a boarding pass would happen and would necessitate at a minimum a face to face with an airline employee. But this is not part of what happens at the TDC, nor part of what is occurring with questioning.

As I recall (without any researching), it added the requirements to comply with Secure Flight and the matching process that occurs.

The crux of the issue in Gilmore was that the TSA would permit him to fly without showing ID, provided he consented to additional screening of his person and property, which was then called "secondary screening". Gilmore did not want to go through that secondary screening. The court said that if a reasonable alternative to not showing ID existed, then the TSA requirement was permissible.

Two items that are not addressed given today's TSA environment are (1) whether the WBI meets the tests for even secondary screening and (2) the TSA requirement that you will not be permitted to enter the sterile area if you have an ID on your person, but refuse to show it.