I've been opting out if I can't get through a metal detector, but my observation traveling with my mom going through the AIT is the same as the OP. I have been with her six times, and only once did she "alarm." In that case, the groper just reached out and started patting her hair and her necklace. She wasn't expecting it and wasn't warned -- I saw her startle and recoil slightly. (Some people might caption her expression as "What the heck???") When she asked what had caused the problem, the screener said "It's your hair."

It's not so much that one affirmatively consents to a battery. It is more that one implies that in these circumstances that a touching is permitted, therefore taking it out of the definition of battery as an "unpermmitted" touching. A court would very likely instruct a jury that entering a checkpoint implies permission for a touching strictly within the scope and limits of promulgated TSA procedures so long as those procedures are conveyed to the passenger. "That's probably one of the reasons for the "I am now going to rub your resistance..." spiel required of TSAs. If you want to drive the TSA bat-dung crazy, file a small claims suit against the TSA for such a battery. They will plead implied consent as an affirmative defense, and they have the burden of proof for such a defense, which means they would have to divulge all the secret squirrel stuff in order to prove that the touching was within the scope of those procedures. Oh, and name the individual clerk as a defendant. He then has to risk prison (for disclosing SSI) to defend himself, which should make for a lot of sleepless nights, and a destroyed credit rating when he loses. Apparently, the TSA has now joined the rape apologists at Delta Kappa Epsilon fraternity and Domino's Pizza (a/k/a Bain Capital) in deciding that "No means yes'"

Disclosure of SSI would result in a civil, and not criminal, penalty... at least from my readings of the FARs, and even the TSA's own web pages.

I believe that disclosure of truly classified material (secret, top-secret, etc) is handled as a criminal matter.

I would infer touching without consent as a physically defensible incident.

And yet so many of the TSA clerks are convinced that they can be imprisoned for it...

Interesting. I'm sure that they could lose their job (as it's part of their employment contract, to not disclose SSI?), and that they could be fined adminstratively (yet would they appeal it until it reached a civl court?), yet I suspect it's more of a way to imply to the pax the "importance" of SSI. Yet hey... behavior can be interesting to observe.

If it was really that important, they wouldn't let passengers know it was that important...nor would they be discussing it with passengers, as happened to me last month.

Well, our favorite goons have replied, completely devoid of content

...
Thank you for your e-mail regarding the rude behavior you experienced from a Transportation Security Officer (TSO).

The Transportation Security Administration (TSA) regrets any unprofessional treatment you may have experienced. TSA seeks to provide a high level of security and customer service to all passengers who pass through our screening checkpoints. Every person and item must be screened before entering the secured area, and the way the screening is conducted is important. Our policies and procedures focus on ensuring that all passengers are treated with dignity, respect, and courtesy.

Please be advised that a passenger can always request to speak with the Supervisory Transportation Security Officer at the checkpoint to address any complaint regarding screening procedures. Additionally, a passenger may register a concern or complaint with security through the TSA Customer Service Manager at each airport. The �Talk to TSA� section of the TSA Web site (https://apps.tsa.dhs.gov/talktotsa/) offers passengers the ability to send complaints directly to the Customer Service Manager by clicking on the map and selecting the correct airport.

Because your complaint concerns an incident that occurred at a specific airport we have forwarded a copy of your letter to the appropriate Customer Service Manager.

We hope this information is helpful.

TSA Contact Center
....

If you're consenting it's, by definition, not battery. In the United States a generic definition of battery is "the use of force against another, resulting in harmful or offensive contact." Therefore, if you've consented you do not find such conduct offensive. Take a person punching another for example. If you were to walk up to me and punch me in the face and I found that harmful or offensive it would be battery. However, if we were in a boxing ring and we were both consenting, it was not illegal, harmful or offensive then it would not be.

Regarding implied consent, I'd have to say that knowingly entering the screening area would be considered implied consent. You don't HAVE to give consent, but if you don't you don't pass through the area and you don't fly. Same same with the explosive residue swabs. Once when I was asked if it was ok for them to do the test I asked "What if I say no?" The response was "That's within your rights but if you choose to exercise those rights you can't pass beyond this point."

Yeah... RIGHT...

One gives implied consent at the airport checkpoint to reasonable, non invasive searches such as to your luggage and carry-on belongings.

However, AFTER you enter the checkpoint, you still have a choice to make wrt the various strip-search machines, whether to enter them or take the patdown, or withdraw from the checkpoint. That is, just showing up there does not give some sort of blanket consent that you cannot withdraw, and this is indeed reflected in the procedures. That is why there is a detailed description of what will be touched and how in the opt-out rubdown ("patdown") You have the option to withdraw.

There is no point in this process where you irrevocably give permission to the blue gloved wonders to lay hands on you however and whenever they wish. They have to ask in the patdown and in the private hut resolution rubdowns. They must ask permission to touch you at any time.

None of the alerts causing physical touch, such as scanner alerts or ETD swabs are remotely close to constituting probable or reasonable cause because of their extremely high false positive rates.

The whole "implied consent" opens an addition can of worms, with "informed consent." I know this is an issue typically discussed around medical communities, but it can also apply here. I have yet to see a posted notice while approaching a checkpoint that says "we may grope and grab you at random without any warning or explanation." To the FF and non-FF alike, they may be giving implied consent for NoS, luggage screening, or even opting out for the massage (patdown), but any time a TSO has molested me I have given explicit consent (saying "opt-out") and been informed prior (sensative areas with back of my hand).

One simply does not have the ability to consent to something they are unaware of, implied or explicit.

Yes, and I was thinking - when we go to the doctor's office (and they have all the reason to have *more* rights than the security goons, considering their task, education, fact of having been chosen for the appointment...) - there is implied consent, but the doctor still says, "can I look in your throat" or "please sign this consent form for X" or "I need to listen to your heart now" and in general communicates before physical contact.

I'm not happy with TSa thinking they can just reach out and grab me from the back. To be fair, it seems like the top brass didn't intend this, either, at least in that form letter I got.

--LG

I agree with you basically 100% but there may (MAY) be case law that says slightly otherwise. I'm not sure and, quite frankly not willing to research it. If I want to fly into/out of the US the goons are gonna grab my butt and my nuts as well as making my life uncomfortable in a variety of other ways. That's the way it is... And that's why I don't go "home" to the US much anymore. Sad, but true....