Fine for revoking consent at security?
Nov 15, 2010 | 1:59 pm
#1
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Fine for revoking consent at security?
I haven't seen a thread on this yet, so I'm sorry if this is a repost.
I was reading a CNN article regarding the guy refusing to give consent to the NoS or the Grope-and-feel and saw an interesting line in the article:
But anyone who refuses to complete the screening process will be denied access to airport secure areas and could be subject to civil penalties, the administration said, citing a federal appeals court ruling in support of the rule.
The ruling, from the 9th U.S. Circuit Court of Appeals, says that "requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until a vulnerable portal is found."
Original article here.
Are they actually claiming we have no rights to decide what's ok for the TSA to do to us after we put the bags down on the x-ray? That's a bit much even for the TSA. Seems like they're coming up with yet another rule for CYA after getting caught doing something against protocol.
I was reading a CNN article regarding the guy refusing to give consent to the NoS or the Grope-and-feel and saw an interesting line in the article:
But anyone who refuses to complete the screening process will be denied access to airport secure areas and could be subject to civil penalties, the administration said, citing a federal appeals court ruling in support of the rule.
The ruling, from the 9th U.S. Circuit Court of Appeals, says that "requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until a vulnerable portal is found."
Original article here.
Are they actually claiming we have no rights to decide what's ok for the TSA to do to us after we put the bags down on the x-ray? That's a bit much even for the TSA. Seems like they're coming up with yet another rule for CYA after getting caught doing something against protocol.
Nov 15, 2010 | 2:07 pm
#2
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A more complete quote from the court's decision (United States v. Aukai) is:
So yes, you are effectively consenting to any REASONABLE search by attempting to enter the airport. But no court has ruled on whether some of the new TSA search techniques are reasonable or compatible with the 4th Amendment
Today we clarify that the reasonableness of such searches does not depend, in whole or in part,
upon the consent of the passenger being searched
...
Thus, “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for
law enforcement, it is necessary to balance the individual's privacy expectations against the
Government's interests to determine whether it is impractical to require a warrant or some level
of individualized suspicion in the particular context.”
...
[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in apost-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to
penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable
portal is found. This rule would also allow terrorists a low-cost method of detecting
systematic vulnerabilities in airport security, knowledge that could be extremely valuable in
planning future attacks. Likewise, given that consent is not required, it makes little sense to
predicate the reasonableness of an administrative airport screening search on an irrevocable
implied consent theory. Rather, where an airport screening search is otherwise reasonable and
conducted pursuant to statutory authority, 49 U.S.C. 44901, all that is required is the
passenger's election to attempt entry into the secured area 8 of an airport.
upon the consent of the passenger being searched
...
Thus, “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for
law enforcement, it is necessary to balance the individual's privacy expectations against the
Government's interests to determine whether it is impractical to require a warrant or some level
of individualized suspicion in the particular context.”
...
[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in apost-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to
penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable
portal is found. This rule would also allow terrorists a low-cost method of detecting
systematic vulnerabilities in airport security, knowledge that could be extremely valuable in
planning future attacks. Likewise, given that consent is not required, it makes little sense to
predicate the reasonableness of an administrative airport screening search on an irrevocable
implied consent theory. Rather, where an airport screening search is otherwise reasonable and
conducted pursuant to statutory authority, 49 U.S.C. 44901, all that is required is the
passenger's election to attempt entry into the secured area 8 of an airport.
Nov 15, 2010 | 2:29 pm
#3
Join Date: Mar 2009
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A more complete quote from the court's decision (United States v. Aukai) is:
So yes, you are effectively consenting to any REASONABLE search by attempting to enter the airport. But no court has ruled on whether some of the new TSA search techniques are reasonable or compatible with the 4th Amendment
So yes, you are effectively consenting to any REASONABLE search by attempting to enter the airport. But no court has ruled on whether some of the new TSA search techniques are reasonable or compatible with the 4th Amendment
Nov 15, 2010 | 2:30 pm
#4
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Nov 15, 2010 | 2:32 pm
#5
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But it still does not seem to explicitly identify such refusal as a "security violation" (to use DHS parlance). Also, there still doesn't seem to be any clear-cut discussion of civil fines specific to screening refusal as an explicit "security violation"...
See this post for further discussion of known TSA posture.
Has anybody else got a source for the specific potential legal consequences of refusing?
See this post for further discussion of known TSA posture.
Has anybody else got a source for the specific potential legal consequences of refusing?
Nov 15, 2010 | 3:03 pm
#6
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Careful! That opinion talks about "consent" in the legal sense of whether evidence so obtained can be used against the person being search. From my reading of that decision, any claim that it can be used to force a person to actually submit to the search is false. I don't think there is any case law on that point.
The judge certainly elaborates that his motivation for the decision is that he doesn't want a terrorist to be able to opt out if TSA is about to find his bomb, and then come back another day and try again.
How does the content of the Aukai decision leave you the option to 'quit' in the middle of a screening, assuming the search is otherwise reasonable and legal?
I've always assumed if a search was "reasonable" and legally authorized, you pretty much have to endure it.
But that does raise the question: In general, what power does any government agent have to force you to submit to a search? For example, if you roll through a sobriety checkpoint and refuse to stop and roll down your window, how do the police force you to submit? To what penalties would you be subject?
My guess is that a law enforcement officer has the power (arrest, physical force, etc) to make you submit to the search. But TSA does not have that power. So I assume they would have to call a local police officer and they could force you to submit. Or TSA can threaten you with civil fines.
Am I anywhere near the right track?
Nov 15, 2010 | 3:03 pm
#7
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This sounds a lot like the same sex screener thing lately. Originally they claimed you were guaranteed a screener that was the same sex as you. There were a couple cases this clearly wasn't happening. Now the TSA backed away from this position and claims it's best effort.
They're clearly trying to cover their asses, but moving further and further into absurdity isn't going to win the public over.
Nov 15, 2010 | 3:39 pm
#9
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