Racial Profiling at BOS

Old Aug 31, 12, 9:04 am
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Originally Posted by T-the-B View Post
I would argue that no consent is given at the checkpoint at all. Instead, the government compells me to undergo a search before it allows me to exercise my constitutional right to travel freely throughout the nation. I do not consent to the search in any meaning of the word; at best I comply. To use the word "consent" in this context is not much better than saying I consent to handing over my wallet to a robber in order to avoid having him hit me over the head.
I understand that position and you are not alone in that position. There are also people on the flip side of that statement that believe that you submit to screening by purchasing the ticket, because it is part of the contract - that you must undergo screening to get to the aircraft for the trip. As I said before, there are many people on each side of this debate, and I honestly think both sides have a point. The argument for many is a Contitutional one, that has no easy answer because we have a history of protection regulations for the greater good". Again, I think that this will wind up coming down to a change of vision on the part of senior policy makers, or a court ruling compelling change or affirming the process as is.

Don't you know you are supposed to throw your wallet at aq robber and run when they go for it?

Originally Posted by studentff View Post
It seems more serious than even that. The story out of BOS suggests that the BDOs were expected to meet some minimum quota of criminal referrals. There's no practical way to meet that quota by referring terrorists or people with ill intent toward a commercial aircraft; after all in over a decade TSA has never intercepted *one* of these people, and the number who exist is so infinitesimally small it might as well be zero.

So the report out of BOS suggests that BDOs were sent out to specifically seek threats not related to aviation security. That's a whole lot worse than being told to report stuff seen as part of a search, or even training TSOs on identifying "contraband."
I am a BDO, and have never been given a quota, or even a hint of a quota of any nature. The program (in my experience) does not work the way indicated in the articles. We are specifically told and taught "Referrals are based on specific observed behaviors only, not on one's appearance, race, ethnicity or religion." We are also taught to not look specifically for contraband, only to report it if discovered while looking for WEI. Anything that is published contrary to that is either misinformation, or someone doing something wrong - I do not know what is going on in BOS, but if the reported stories are correct, then many of the things I have read are not being done according to SOP. I have also read that TSA has initiated an investigation into the situation, so hopefully they will get to the bottom of it and make the proper disciplinary decisions - if there is a call for it.


Originally Posted by Boggie Dog View Post
The TSA Administrative Search is limited to searching for WEI, nothing more. When it goes outside of that limitation then TSA and its employees are abusing the United States Constitution and their Oath.
I have also heard dissenting opinions on that from individuals much more familiar with constitutional law than either one of us, so again, barring a change in vision by senior management or a court ruling, it appears we are at an impasse.
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Old Aug 31, 12, 9:40 am
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Originally Posted by gsoltso View Post
There are many arguments (many of them have been presented here) that the consent given at a checkpoint is not an informed consent due to the nature of the regulations and SSI and such - I can see that argument and understand the point made by it.
It's more than a consent issue, though, and one of the cases that the government lost in an excusionary hearing (I think it was the one relating to kiddy porn) raised the issue. TSOs are being told "you're only supposed to look for WEI, but if you see something else illegal, you're required to report it". Is this a "distinction without a difference"? Is there really that much of a difference between "look for" and "see"? This is especially true if there's any kind of a "reward" for making the report, including just "a pat on the back".

To me, this is likely to be the larger issue in court than the consent one. Is requiring (or even encouraging) TSOs to report things that they "see" that are not within the bounds to "look for" in the administrative search causing them to effectively "look" for them and hence overstepping the bounds of the administrative search? If so, then consent is irrelevant.
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Old Aug 31, 12, 10:46 am
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Originally Posted by RichardKenner View Post
It's more than a consent issue, though, and one of the cases that the government lost in an excusionary hearing (I think it was the one relating to kiddy porn) raised the issue. TSOs are being told "you're only supposed to look for WEI, but if you see something else illegal, you're required to report it". Is this a "distinction without a difference"? Is there really that much of a difference between "look for" and "see"? This is especially true if there's any kind of a "reward" for making the report, including just "a pat on the back".

To me, this is likely to be the larger issue in court than the consent one. Is requiring (or even encouraging) TSOs to report things that they "see" that are not within the bounds to "look for" in the administrative search causing them to effectively "look" for them and hence overstepping the bounds of the administrative search? If so, then consent is irrelevant.
I recognize that it is a fine line between the two, and I can speak for no other person than myself. I have not gone into a bag looking for things past WEI, and only reported things found in the course of doing that. That is what the SOP calls for, and it is what I adhere to. I have not recieved an award for finding contraband, so I have not been placed in a situation where I profited from it. I would also like to see any type of reward program for finding things like contraband removed from the system, although I do not recall personally seeing it happen before.
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Old Aug 31, 12, 11:42 am
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Originally Posted by gsoltso View Post
I recognize that it is a fine line between the two, and I can speak for no other person than myself. I have not gone into a bag looking for things past WEI, and only reported things found in the course of doing that. That is what the SOP calls for, and it is what I adhere to. I have not recieved an award for finding contraband, so I have not been placed in a situation where I profited from it. I would also like to see any type of reward program for finding things like contraband removed from the system, although I do not recall personally seeing it happen before.
Are there such reward programs in TSA?
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Old Aug 31, 12, 11:51 am
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Originally Posted by gsoltso View Post


I have also heard dissenting opinions on that from individuals much more familiar with constitutional law than either one of us, so again, barring a change in vision by senior management or a court ruling, it appears we are at an impasse.
So TSA senior management are constitutional experts?

What I see from TSA is attempts to push the limits until someone (courts) pulls them back, yet legislation makes it almost impossible to take legal action against TSA.

I don't think our founders would approve of this situation or of TSA and I feel sorry that supposedly good citizens can somehow justify working for this agency.
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Old Aug 31, 12, 11:55 am
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Originally Posted by Boggie Dog View Post
So TSA senior management are constitutional experts?
Only as long as Francine has access to Google.
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Old Aug 31, 12, 11:56 am
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Originally Posted by gsoltso View Post
I recognize that it is a fine line between the two, and I can speak for no other person than myself. I have not gone into a bag looking for things past WEI, and only reported things found in the course of doing that. That is what the SOP calls for, and it is what I adhere to.
But that gets tricky because you're a human being. Here's a scenario that may well have been what happened in the kiddy porn case. You're looking through a bag and there's an envelope full of pictures. One of them falls out. That picture is of a naked young child. From that picture, you can't tell whether it's an innocent picture of a toddler about to take a bath or potential kiddy porn. Do you look in the envelope at the rest of the pictures to decide what to do? Do you call an LEO? The former is clearly outside of the SOP. The latter is somewhat dubious because the picture in itself is not suggestive of anything illegal. So the line is even finer.
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Old Aug 31, 12, 4:53 pm
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Originally Posted by gsoltso View Post
I have also heard dissenting opinions on that from individuals much more familiar with constitutional law than either one of us, so again, barring a change in vision by senior management or a court ruling, it appears we are at an impasse.
Originally Posted by Boggie Dog View Post
So TSA senior management are constitutional experts?
C'mon ... that's not what he said. There's plenty of room between "knowing more than I do" and "constitutional expert".

TSA has lawyers that claim that what TSA is doing is constitutional. No challenge to TSA procedures has been successful to date; that doesn't mean a future challenge won't be successful, of course, but it also means that the procedures aren't laughably unconstitutional. gosltso's statement still holds; unless someone gets a court to intervene in ways they haven't done to date, or senior management changes direction, TSA's current procedures are what we're all stuck with.
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Old Aug 31, 12, 4:56 pm
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Originally Posted by jkhuggins View Post
gosltso's statement still holds; unless someone gets a court to intervene in ways they haven't done to date, or senior management changes direction, TSA's current procedures are what we're all stuck with.
...or until the TSA's spineless "employees" evolve some backbones and start refusing to mistreat fellow citizens based solely on their desire to travel in a timely fashion.

I don't see that one happening any time soon, either.
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Old Aug 31, 12, 5:06 pm
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Originally Posted by Caradoc View Post
...or until the TSA's spineless "employees" evolve some backbones and start refusing to mistreat fellow citizens based solely on their desire to travel in a timely fashion.

I don't see that one happening any time soon, either.
Or, until the US flying public rises up and refuses to tolerate the current state of affairs. That ain't gonna happen any time soon, either.

Plenty of apathy on both sides to go around ...
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Old Sep 1, 12, 5:35 am
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Originally Posted by jkhuggins View Post
TSA has lawyers that claim that what TSA is doing is constitutional. No challenge to TSA procedures has been successful to date; that doesn't mean a future challenge won't be successful, of course, but it also means that the procedures aren't laughably unconstitutional.
I disagree with that. I think you're assuming the courts operate at a speed much faster than they do. Many of the procedures we're talking about have only been in effect for a few years. It takes far longer than that for constitutional cases to work their way through.
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Old Sep 1, 12, 5:42 am
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Originally Posted by Boggie Dog View Post
Are there such reward programs in TSA?
Not that I know of as a matter of policy, but I have heard reports of awards being given for finding items (guns are the only thing I can recall at the moment and I can't find the article on it, it was like 5 or more years ago).

Originally Posted by Boggie Dog View Post
So TSA senior management are constitutional experts?

What I see from TSA is attempts to push the limits until someone (courts) pulls them back, yet legislation makes it almost impossible to take legal action against TSA.

I don't think our founders would approve of this situation or of TSA and I feel sorry that supposedly good citizens can somehow justify working for this agency.
Not necessarily, but I do know other people than TSA senior management.

Originally Posted by RichardKenner View Post
But that gets tricky because you're a human being. Here's a scenario that may well have been what happened in the kiddy porn case. You're looking through a bag and there's an envelope full of pictures. One of them falls out. That picture is of a naked young child. From that picture, you can't tell whether it's an innocent picture of a toddler about to take a bath or potential kiddy porn. Do you look in the envelope at the rest of the pictures to decide what to do? Do you call an LEO? The former is clearly outside of the SOP. The latter is somewhat dubious because the picture in itself is not suggestive of anything illegal. So the line is even finer.
Agree that this is a touchy issue, but I tend to operate based on what I can glean from the actual situation. Based on your situation, there is no overt indication of child pornography, simply a photo of a naked young child. I think that more of us have photos of our family members in less clothing than they are usually in, and none of them have any sexual component at all. I even have a pic of my daughter when she was tiny (6-7 months old) sitting in a bucket with full imagery of her above the waist with a huge smile, it was a great picture. There are tons of art exhibits with naked imagery of children and adults. Without fairly conclusive evidence that it is actually pornography (such as sexual acts or lewd posing) it is simply a photo of a child in their natural state.

Originally Posted by jkhuggins View Post
C'mon ... that's not what he said. There's plenty of room between "knowing more than I do" and "constitutional expert".

TSA has lawyers that claim that what TSA is doing is constitutional. No challenge to TSA procedures has been successful to date; that doesn't mean a future challenge won't be successful, of course, but it also means that the procedures aren't laughably unconstitutional. gosltso's statement still holds; unless someone gets a court to intervene in ways they haven't done to date, or senior management changes direction, TSA's current procedures are what we're all stuck with.
^
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Old Sep 1, 12, 6:11 am
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Originally Posted by gsoltso View Post
Agree that this is a touchy issue, but I tend to operate based on what I can glean from the actual situation.
But clearly, as you say, many (if not most) TSOs don't have equal sensitivity to this issue as you apparently do. Then there's the proverbial "bag of white powder". Some TSOs have posted there that they don't try to figure out what the powder is, but call an LEO to do so. That's exactly the same sort of ambiguity as the naked picture of a child, though less likely to run into emotional concerns. But calling an LEO in that case is equally wrong, I believe. The constitutional problem with this scheme is the fact that so many people are being required to "do the right thing" for it not to be a violation. And that sort of situation has been found, many times, to be unconstitutional for just that reason.

I think it's interesting that, as far as I know, there was no appeal to the two losses in an exclusionary hearing when a TSO found an illegal, but non-WEI, object. That tells me that DOJ is much more concerned about the constitutional issue than DHS and doesn't want to have a negative precedent. If DOJ keeps the practice of not appealing such, we may never have a definitive court opinion on the topic.
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Old Sep 1, 12, 6:27 am
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Originally Posted by RichardKenner View Post
But clearly, as you say, many (if not most) TSOs don't have equal sensitivity to this issue as you apparently do. Then there's the proverbial "bag of white powder". Some TSOs have posted there that they don't try to figure out what the powder is, but call an LEO to do so. That's exactly the same sort of ambiguity as the naked picture of a child, though less likely to run into emotional concerns. But calling an LEO in that case is equally wrong, I believe. The constitutional problem with this scheme is the fact that so many people are being required to "do the right thing" for it not to be a violation. And that sort of situation has been found, many times, to be unconstitutional for just that reason.

I think it's interesting that, as far as I know, there was no appeal to the two losses in an exclusionary hearing when a TSO found an illegal, but non-WEI, object. That tells me that DOJ is much more concerned about the constitutional issue than DHS and doesn't want to have a negative precedent. If DOJ keeps the practice of not appealing such, we may never have a definitive court opinion on the topic.
I agree that not every TSO thinks and operates the same way I do. It is a tough call on many of the things and I am certain that we could list a whole slew of items/substances that would be a subjective call on the part of the TSO. I just think there is no easy answer for this, we have both sides indicating that they are right Constitutionally, and it appears that neither side will go lightly on this issue.

There may have been procedural or technical issues that prevent those appeals, or it may be that they do not think they have anything to appeal on. One of the cases thrown out was because the TSO clearly exceeded the scope of the SOP, by looking specifically for something outside the WEI description - by her own admission. An appeal in that case would have been a moot attempt. Which cases are you referring to so I can look them up and see what type of situation you are commenting on? (I don't need necessarily a specific link, just something I can use to look them up)
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Old Sep 1, 12, 8:48 am
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Originally Posted by jkhuggins View Post
C'mon ... that's not what he said. There's plenty of room between "knowing more than I do" and "constitutional expert".

TSA has lawyers that claim that what TSA is doing is constitutional. No challenge to TSA procedures has been successful to date; that doesn't mean a future challenge won't be successful, of course, but it also means that the procedures aren't laughably unconstitutional. gosltso's statement still holds; unless someone gets a court to intervene in ways they haven't done to date, or senior management changes direction, TSA's current procedures are what we're all stuck with.
I'll stand by my comment.

TSA's brain trust is imposing rules on the public without any real means of challenging those rules. TSA has failed to follow the Administrative Procedures Act prior to its rulemaking and even when ordered by a court to conduct a period of public comment has failed to act promptly to do so.

Everything TSA is doing that goes beyond a limited Administrative Search solely for WEI is in my opinon unconstitutional.
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