TSA: Search your iPhone? Yes we can!
 

http://tsaoutofourpants.wordpress.co...-in-your-bags/

--Jon

they can do whatever they want after they incorrectly input the password and wipe the phone.

I'd like to see them try to get information off my phone after I "accidentally" "drop" it on the floor.

1. I used a fake ID many times in my youth to get myself into places I shouldn't have been. Even carried a fake ID onto a plane with me a time or two because I knew I was going somewhere full of places I shouldn't have been. I'm pretty sure I was never a threat to the aircraft.

2. Enjoy trying to get into my Android. I have an app that makes the thing wail like a banshee if the wrong password is entered too many times. I'd love to see the look on the TSO's face as they realize that they've just set off an obnoxiously-loud siren at a checkpoint full of people who've been conditioned to fear the boogeyman at every step.

Could I suggest changing that to a really loud ticking sound?

You are my new hero. I only hope to be in the terminal when that happens.

Sorry, T.J., nachtnebel is my new hero. :D

Mike

And get his phone blown up by the EOD guys???

EOD guys are generally smart enough to know that a ticking phone isn't a bomb.

How can they claim anything as "identification media" that they don't list as an acceptable ID? They are obviously appealing to a judge with the attention span of my cat.

Sure they are, but the TSA isn't.

I'd love to see the look the TSA got from EOD when the former showed the latter the "bomb".

It they really wanted the information they'd use forensics techniques that bypass the screen lock and suck the information off unencrypted.

But that's being paranoid because the 4th amendment stands in their way, right?

They didn't claim that. The blogger/OP did.

The judge hasn't ruled yet, either, so I'm pretty we don't know the judge's attention span -- or your cat's, for that matter.

The iPhone was thrown in by the blogger to generate a sensationalistic headline that would grab readers. There is nowhere in the Motion to Dismiss that in any way suggests that TSA believes it's acceptable to search someone's phone under the guise of seeking "Identification media."

In fact, the MTD & Memorandum in support that the blogger posted don't even contain the phrase "identification media," or the quote that the blogger called out on the post. (ETA: The MTD doesn't contain it; the Memorandum does.)

What's sad is that, this lawsuit might *actually* have some merit to determining how constitutional some of TSA's policies are, but as long as the blogger turns every question or issue into a slippery slope, the mainstream won't listen.

I found the term "identification media" on page 3 of the Memorandum of Support, lines 1 and 2. It may appear elsewhere as well.

That part of the Memorandum contains the quote the blogger called out in the post.

You need to put two and two together. The TSA has now said we can search for WEI and "identification media" without defining what that is. We've all seen that the TSA stretches every rule and twist of language possible (for example, refusing to let them molest your daughter, taking off your clothes in protest, being upset, etc. all meets the TSA's view of "interference with checkpoint screening"), and it really doesn't take a big stretch to conclude that the TSA will now see itself justified searching anything that "may" identify you.

--Jon

All legal arguments can be viewed as "slippery slope" arguments! You always say "If X were the case, then wouldn't Y also be?". Remember the Supreme Court Justice's questions in the ACA case, such as "If you claim the government can force people to buy health insurance, do you believe the government can also force people to buy brocoli?".

It's perfectly reasonable to argue "if you accept the TSA's belief that they can search any bag looking for a false ID, doesn't that also mean they can search a phone or computer looking for evidence of fake ID?".

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.)

Can your phone be programmed to yell "Bravo?" :D

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

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

How about, "I've been stolen!"

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.

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.

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.

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)

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.

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.

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

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.)

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.

- 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.

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.

Because the TSA is prone to making blog posts that their employees "...followed correct procedures..." instead of admitting they've penetrated the canine.

I can tell your mind is made up, and you likely won't undertake to learn about electronic identities and the use of those identities in electronic devices such as cell phones.

As I alluded to earlier, a lot of effort is being expended to make the smart phone the next wallet. That makes the cell phone as much, or more, of a target than a physical wallet.

If you do want to learn, you can start by googling for "Trusted Identities in Cyberspace" and "NFC chip".

But I doubt you will because your mind obviously is closed.

Wasn't this all addressed in Gilmore v. Gonzalez? The court said the only reason asking for ID at the checkpoint was valid was because passengers had the option of a undergoing a more stringent search in lieu of presenting ID. So they have no power to demand or force you to show ID... right?

So why on earth would they need the ability to search for ID? If I decline to show ID and ask to undergo a secondary search, will they then be entitled to search my luggage for ID? :confused:

I also thought court cases and settlements had strictly limited TSA to the search for WEI. Why is this even up for question again?

sigh.

This has been touched on before, in this forum and elsewhere.

If I tell the TDC that I have no ID (or he/she declines to accept the ID I present for some reason), Gilmore vs. Gonzalez says they have to offer me alternative screening.

That alternative screening can include (and has) a rigorous 'bag check'. If ID turns up during the bag check, TSA now has evidence that I lied when I said I had no ID. That, of course, will probably be construed as 'interfering with the screening process' at the very least, and I would be quite surprised if LEOs weren't summoned.

TSA would claim that the bag search was just part of a cautionary random procedure applied to pax without ID. It would be another (bogus) example of "we're not authorized to look for it, but if we find it, we have to tell someone".

If only you knew what I did for a living, you'd probably find your post as idiotic as I do.

It's not because they need it. It's because they want it. (Why? Probably so they can post more success stories about finding college kids and petty criminals with fake IDs to make themselves look valuable to the taxpayers. Or because they're just curious.)

And it's because neither Congress nor the court system have stopped TSA - ever - from doing exactly what TSA wants to do. Case in point: TSA implements body scanners; Congress (belatedly) says they should have had a public rulemaking process and demands that they do so; TSA ignores Congress; Congress ignores the fact that TSA has ignored them.
But none of the those court cases have actually stopped the TSA from overstepping such a limit. They continue with ID checks, and the name game, and the BDO farce, and reading (and confiscating) passenger's papers, none of which have anything to do with the search for WEI.

They do it because they can, and no one will stop them. :mad:

Sigh, indeed. :(

They have evidence you may have lied. There's no way of proving that you knew it was in the bag.

I carry four to five acceptable ID's. When I present my NEXUS and they ask if I have another ID I NEVER say I do not have another ID. I say, "The NEXUS is an acceptable ID by your own SOP." If they still balk, I ask for a supervisor. I never admit or say I do not have another ID.

Furthermore. I have considerable experience dealing with obstinate TDC's and my NEXUS. At no time has the rejection of the NEXUS lead to an alternate screening. Yes, my tool case gets a close check, but it should. My computer backpack is almost never checked. I have never been given a pat down due to the NEXUS standoff.

I do not say I do not have an ID. I present an acceptable one, and I insist that they follow their own guidelines and accept it.

As far as I know, I haven't heard any anecdotes of someone testing GvG a the checkpoint, but I wouldn't lie about my ID, I would say that I decline to show ID, as established in the Gilmore v. Gonzalez case. Or in the case of a domestic flight, I could check it after presenting it to the airline staff.

I wonder if it would make it easier or harder to get through the checkpoint if I assert that I am exercising my right to opt for a secondary screening in lieu of showing ID. I wonder how DFW TSA would respond to someone who said, "No, I don't particularly need to fly today, it's a leisure trip, and I care more about making sure that TSA is still adhering to procedures approved by the Supreme Court."

There have been some very explicit court decisions that have set limits, it's just that no one seems to test them / sue the TSA when they overstep those limits. Or maybe they do, but the courts are slowwwww....

Aukai set specific limits, Gilmore set specific limits, Bierfeldt was settled but also set specific limits. Of course, I wonder if Kathy Parker ever sued after TSA violated that settlement...

This is the latest thing I could find on the George case - pdf warning (Arabic flashcards), but it looks like it is proceeding. The motions to dismiss were denied and the judge opened the case up for discovery. (!!) That's the first TSA case I've heard of allowing discovery.

Jon -- Did you receive a copy of the Management Directive referenced in the memorandum in support? It said that it was attached. This might make for interesting reading. Thanks