2016-09-09 OIG-16-134 Transportation Security Administration Needs a Crosscutting Risk-Based Security Strategy

Does that mean TSA gropes at trains and buses?

Road blocks. They'll grope the driver, demand IDs, confiscate all LGAs >3.4 ounces, and have a voodoo BDO review everyone via remote Ipad connection.

Can't be too safe.

TSA's airport Risk Based Screening is pretty weak. Treat everyone like a terrorist in some cases and not others. Use BDO's which have been proven ineffective. Allow aircrew and airport workers to access the sterile area with little to no screening at all.

I would call TSA's Screening Program not well thought out.

Yup, NYC Subway with NYPD using ETD, the sniffer type in uniform at entrances.

Issue is if a subway station has more than one entrance they are setup only at one. You can refuse bag check, you will not be allowed access at that entrance, just walk to the other one and enter. I do it all the time at my home stop.

I question the legal issues of police requiring a search without a warrant in order to access public transportation.

TSA believes security means visual and tactile inspection of as much of the pax and his belongings as is possible, while excusing all TSOs and airport workers from the same inspection based on a single background check.

"Risk-based" means intel, something TSA confuses with comic-sketch 'profiling', ie, BDOs. The current actual 'intel' clearly shows that the vast majority of pax around the world just want to take a plane to somewhere and land safely.

Not sure how relevant it is today, but it provides an insight to what might arise if all modes of national transport require screening.

US v. $124,570 US Currency, 873 F. 2d 1240 - Court of Appeals, 9th Circuit 1989

As Professor LaFave notes, should the government decide to screen all passengers on trains, buses or cars, such a procedure could not be upheld on grounds of implied consent, in the absence of a constitutionally sufficient justification. Any other conclusion "not only offends common sense, but flies in the face of the most fundamental Fourth Amendment principle that the government cannot `avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines would be tapped or that all homes would be searched.'" 4 W. LaFave, Search and Seizure � 10.6(g) (2d ed.

According to a filing in one of Corbett's cases whose seal TSA messed up and thereby leaked, TSA has intel that there have been zero credible threats to US domestic aviation in the last decade.

FWIW, there's a circuit split about whether administrative searches (like airport) are justified by implied consent and notice, or a priori based on reasonableness.

There should have never been a split. When the airlines were responsible for security it was an agreement between you and a private service. Just like Disney can demand to search your bag and deny you entry if you refuse. When the security was "federalized" it blew that argument out of the water. The fact that the TSA routinely turns passengers over to law enforcement when finding non-security related contraband pretty much shreds the administrative search dance around the 4th amendment.

As to the other argument about greater threat to aviation compared to other modes of transportation, isn't it amazing that thousands of GA and other charter flights have occurred every day since 9/11 without a single terrorist incident occurring due to un-screened passengers.

GA is required to undergo security screening before flight, albeit it much less than in commercial aviation.

Yes, and the economic impact of security (or even maintenance) issues with GA is many magnitudes less than with commercial aviation.