Caradoc

Considering that CBP already searches laptops and phones, I don't see it as a great stretch for the TSA to assume that authority.

(Note - I don't see that as a good thing. If it's not a hazard to aviation, it's none of the TSA's business.)

Flaflyer

Can your phone be programmed to yell "Bravo?"

T.J. Bender

You know...it does let me select the siren sound...

"Sir, what is the password?" (punches random numbers again)
"FREEZE! BRAVO! FREEZE! BRAVO!"

Loren Pechtel

How about, "I've been stolen!"

UshuaiaHammerfest

I stand corrected. Not sure how I missed that... I even searched with Chrome multiple times. My main point still stands, though.

Scalia posed that question. He poses a lot of questions that are pretty ridiculous. It doesn't mean it's a valid legal argument that meets the standard of "Critical Thinking," and doesn't mean the justices -- including Scalia -- actually believe what they're asking. They want to hear the counter-argument.

Leave the slippery slopes to the extreme right wing Fox News types. I'll stick with Critical Thinking.

Strong legal arguments are not a slippery slope. Extreme right and left media and no-talent bloggers use the slippery slope as an argument. Real journalists and critical-thinking individuals actually compare like to like.

Comparing "identification media," which reasonable people construe to mean "Something with your name on it that can reasonably be used to determine identity" to "searching through your iPhone" is not comparing like to like.

No, it's not. You don't have to agree with the TSA's argument that they're entitled to search for fake ID (and I certainly don't), but you also don't need to jump to the extreme that they're suddenly going to start searching through your phone, laptop, iPad, or the car you have parked in the parking lot.

You *certainly* don't need to put an entirely fabricated argument in a headline. If a journalist did that, we'd call it irresponsible journalism.

OldGoat

I disagree. There's nothing magic about printing on paper or plastic that makes it the only repository of identification. Moreover, there's a strong move today towards electronic media, and putting identification on that electronic media instead of paper. There's standards and protocols, and products. Moreover, laws are increasingly requiring the use of electronic media for both an assertion of identity and and authentication.

If you are like most people, you probably have electronic identification already; you just don't know it.

RichardKenner

But it most certainly is! I'd suggest you read some typical briefs in legal cases. Whenever somebody claims they have some right, the question is always to ask what they see as the limits of that right. If my neighbor is suing me because I've built something one foot into their property and I claim I have a right do to that, I should most certainly expect the judge to ask me where I think the limit is. One foot, two feet, ten feet? Etc.

ScatterX

I prefer...

[inserts wrong code]

Phone starts yelling "Stop touching me!"

[inserts wrong code again]

"You're hurting me. Stop. Help. Phone rape. Help" (lather, rinse, repeat)

ND Sol

But there is a big stretch when the former is applicable only when entering the US (or a "functional equivalent" border) and the TSA is on a totally domestic basis.

If the TSA believes they have this authority, then fine, change the law to extend beyond WEI, which is what the current regulations state. Given the TSA's refusal to provide notice and comment about AIT over a year after the court ordered it to do so, I don't hold out much hope that the TSA feels any compulsion to document this authority except by internal fiat.

FliesWay2Much

Wait just a minute --

The TSA has never been held accountable, for (among other things) defining the limits of their version of an "administrative search." In the real world, there is a precedent called something like the "elephant under the coffee table" standard. If you are a government actor conducting a search for an elephant, anything you find under the coffee table is inadmissible and out of bounds because an elephant can't hide under a coffee table. The TSA has never had to justify the minimum size of a prohibited item. That's our fault -- the American People -- for allowing that to happen. The smallest stable substance in the known universe is an atom of hydrogen. Since an atom of hydrogen is flammable, and, since the TSA has never been held accountable, they can claim that they have to search for items as small as an atom of hydrogen. That's their justification for looking inside personal papers, wallets, and other small areas and "discovering" joints, pills, cash, blank checks, and multiple credit cards and driver's licenses.

The whole ID nonsense got started when a former TSA administrator simply declared that "ID matters." (Hawley, circa 2008.) As is the case with prohibited items, there is no limit to what they define as ID, nor do they have to justify why they detain and otherwise harass someone they find with multiple "identification media" (again, an undefined term) that anyone of them hired off a pizza box determines to be fraudulent.

Does "ID matters" mean it's against TSA rules to fly with multiple IDs with different names? How about movie stars and even the local TV weather man with a stage name they may have on a company badge? How about a woman who just got married or divorced? How about an intelligence officer in a cover status? How about spouses with different surnames? Heck, "ID matters" doesn't even define an "ID." The TSA web site sort of does, but, places no limits on the TSA's ability to question anything with a name on it -- hard copy, electronic, tattoo, etc. "Throwing in an iPhone to generate a sensationalist headline..." is very much in bounds because the TSA has never said that searching electronic media of any type for undefined "identification media" is out of bounds.

It's clear that the TSA is looking to establish a new foothold on intrusiveness. If a judge and his/her law clerks don't do their homework, yes, he/she will have an attention span less than my cat's and do us all a huge disservice by driving another nail into the coffin containing the U.S. Constitution.

Affection

Why the word "media" then? I had never heard such a term as "identification media" before. What was wrong with "identification documents" (which could still include electronic documents, but is still less ambiguous and odd)? It seems to me that these words were very carefully chosen -- intentionally to allow their "officers" to search anything that might identify someone.

Don't want to believe it? That's fine -- but I guarantee we'll see in the news within the next year or so that the TSA has gone there, unless we can get this nonsense struck down in court (err, again).

--Jon

UshuaiaHammerfest

If it's so easy to make the jump from "we are allowed to look for identification media" to "we are allowed to search your iPhone and your laptop for whatever we want," then why stop there? Surely, the TSA must also think they're allowed to escort you to your car and search it, right? After all, your car most certainly has identification media (your registration, for example) and it's on airport property. Why didn't the blogger add that possibility to his post of irrational fears and baseless accusations?

Naturally, though, the most efficient identification media are things like your fingerprints and DNA. Surely by arguing what the FSD at that particular station argued, the TSA must certainly be saying they have a right to collect fingerprints and DNA samples and run them against the various national databases to confirm your identity. After all, since the TSA thinks they're allowed to look for drugs, they can also force a urine sample, right? They must already be doing it, right? Well if not, I guarantee it'll be happening in a year.

Why stop midway down a slippery slope? Let's take it as far down as we can. Who cares about rationality when we're fear-mongering about unknowns?


(I've read plenty of legal briefs. The difference is in what constitutes an argument, a question, and a ruling, and to how each is presented.)

chollie

I find it eminently believable that TSA assumes it has the right (whether or not it has chosen to exercise it) to examine a cellphone, and I certainly wouldn't be surprised to read of a 'rogue' screener doing just that.

It may come up in conjunction with a mobile boarding pass - if the BP itself is suspicious, a TDC may very well use that as justification to try to probe a little deeper.

studentff

- TSA considers a boarding pass to be a document authorizing entry into the sterile area (as it shows a passenger's name/DOB have "passed" the blacklist test). One could easily assume TSA considers a boarding pass to be "identification media" or something closely related to it. Many passengers now are using electronic boarding passes on their phones.

- TSA has in the past (and regardless of alleged official policy) accepted school IDs, Costco cards, and postmarked envelopes as evidence of identification. The email outbox on my phone arguably is equally good evidence since it shows my name as the source of any message generated.

Also note that TSA at PHL went on a fishing expedition and questioned the legitimacy of checks in a passenger's wallet (google "Kathy Parker TSA).

Without any stretching at all, I can easily see a power tripping TSO using these facts as justification to attempt to search a passenger's phone. Do you disagree? Note that even if it is not policy, all it takes is one FSD, AFSD, TSM, STSO, or even lone wolf TSO to decide to implement a "better" local policy and search a phone.

A DHS/TSA attorney stated, to a Federal Appeals Court, that DHS believes it has the legal authority to strip search every air traveler that a mandatory strip search rule could be instituted without any public rulemaking. Do you really think people with that mentality don't believe they have the authority to search all of the things you list today if they so desire?

The article and headline are poorly written but not misrepresentations of the situation. I'm much more worried about the power-tripping wannabe fascists running DHS/TSA than I am about poor journalism.

UshuaiaHammerfest

I'm not arguing what a rogue screener would or wouldn't do. A rogue cop can decide to arrest you for filming him from a public street. That doesn't mean the law supports him. In the TSA case, it doesn't mean the TSA's policy is to allow searches of iPhones. How to handle rogue screeners is an entirely different question than whether or not the TSA is claiming it systematically has the right to search phones.

I don't disagree in the least. But when a rogue cop does something, we don't jump to the conclusion that Law Enforcement on a nationwide scale agrees. Why would we apply the same thought process to TSA?

Yes they are. The TSA claimed it has the right to search for identification media. It did not claim it had the right to search a phone. To claim otherwise is to misrepresent the situation.

See, there's the rub. Unless you have mainstream people and lawmakers supporting you, you just won't get anyone to pay attention and won't get anything changed. There are plenty of indictments against TSA without falsely construing more.

As I said in my first post on the matter, the lawsuit isn't such a horrible idea and yes, I wish someone like the ACLU were waging it. But as long as the blogger makes up complete BS, he's going to drive away anyone who might be in the "undecided" or "non-extreme" camp.