Organization and Substantive Action
 

Were any of us accused of the most serious of felonies, our Fifth Amendment rights would remain intact. Clearly, the TSA forces air travelers to surrender Fourth Amendment rights just to travel efficiently. I believe it's time we at flyertalk.com organized and expressed ourselves in some more meaningful manner in regard to ending the WBI, enhanced pat downs, and other clearly illegal abuses we are facing. I’m not talking about opt out boycotts, I’d like to support the end of this outrage in a more substantive manner.

Last January, before the scanners were supposed to have been implemented, I was one of the first to report having opted out and having received a punitive pat-down. So I set up a Google news alert for "TSA Scanner' and the news just pours into my inbox. From most of the recent reading I've done, it is obvious the public has had enough. Almost all of the news I’ve read concerns expressions of outrage and occurrences of TSA abuse. I give the enhanced pat down and WBI machines another year, hopefully less, but the government needs incentive to act to end its egregious abuse of the constitutional rights of air travelers.

So, how to proceed? Perhaps a supportable suit has been filed against Homeland Security and it requires our contributions. If not, certainly someone here has the knowledge and will to start an appropriate legal action. As an expat living in Europe and the Middle East, I am a little hamstrung in regard to leading the action - it is simply impracticable for me. But I would happily contribute more than a few of my dollars to any serious action to end this abuse and I don’t think I’m unique in this regard.

You could join this effort or follow the existing lawsuits.

I don't see any class action suits. (Is a CAS applicable to this situation?) Disappointingly, I don't see the ACLU taking a particularly hard line on the issue.

But seldom is there a day when there isn't a new post here complaining of TSA abuse, WBI, and groping. As the largest and most influential flyer forum, I had believed someone with a legal background could contribute advice as to how those of us who realize the unconstitutionality of the present TSA action and have sufferd the grope and WBI might offer some advice as to how to support a potentially successful action already in place which might change this situation.

I also wish that ACLU would take a stronger position. It's unfortunate that the only court battles currently under way involve individuals against a massive government agency. Hardly a fair fight.

Bruce

has anyone had a dialogue with the ACLU to understand why they are taking a passive stance at this stage?

I haven't lived in the US for so long, I've allowed my membership to lapse. Nevertheless, I think speaking to the appropriate person or even getting a straight answer from them seems unlikely. Almost all of the suits I've seen involve individuals with complaints. The real complaint is the unconstitutionality of the searches. As I wrote in my original post, even were I suspected of a serious felony, I would not be forced to surrender my constitutional right under the Fifth Amendment yet, in order to travel by air, I have been forced to surrender my Fourth Amendment rights in a most intrusive and humiliating manner to an unqualified individual with whom I most probably would not ever engage socially. It is not reasonable to allow a government employee to image or to touch my genitals without probable cause?

In the opinion many of us share, present TSA practices are unreasonable searches.

So where is the credible law suit we can support addressing the constitutionality of the searches? If it doesn't exist, shouldn't we consider how to start it and sustain it?

They're too busy sending weekly letters trying to solicit money from folks that belonged to the organization 10 years ago but haven't renewed since.

ACLU has several ongoing lawsuits vs. the TSA. See my last post in the lawsuits thread.

Hardly 'passive', but not as aggressive as I'd prefer.

The only case you mentioned there relevant to the checkpoint, Bierfeldt, was "voluntarily dismissed" by the ACLU when the TSA changed their policy.

I think what people are asking, myself included, is what is the ACLU going to do about the alleged numerous and egregious 4th amendment violations going on at the checkpoint.

It's good that they're looking after the few trapped on the no fly list or the few who get harassed for wearing Arabic t-shirts, but what are they going to do to help the many?

Is it just going to be amicus briefs?

Call to Action
 

Based on my reading of the posts here and what fraction makes it to the media, there is a clear need for a concerted effort if here is any hope of converting these otherwise idle grumblings into policy.

There may be some opportunity in the appointment of Jason Chaffetz (UT) to chair the DHS Oversight Committee and Darrell Issa (CA) to lead the Homeland Security subcommittee. There are other politicians that are supportive, such as Rush Holt (NJ), and Ron Paul (TX) but they are being marginalized in the press as flakes. John Mica (FL) took corporate AIT contributions and must be viewed with skepticism.

Fortunately I don’t fly the 30 to 40 weeks per year that I used to but I am sympathetic to those who still do, particularly the lone female travelers that TSA seems to prey upon. While my aging body won’t be of interest to the poor screener who will have to view it and even less likely to be eagerly groped, I have adult children who may be the next victims.

There seem to be two issues with differing remedies. I’m not a lawyer so perhaps there are flaws in my logic but here is my read.

Problem 1 - The nude scanners. Despite TSA claims to the contrary, the basic file from the scanner is a black and white photograph of a nude, hairless body. All features including the face are recognizable and reproducible since it is essentially a string of code. It is “enhanced” by the computer program to reduce the human features and highlight foreign objects. Depending on the local settings the screener may or may not be able to reduce the enhancement for a more pornographic view or increase them find hidden contraband. Since these images are code they can be copied either in raw format or via external photo.

Remedy 1 – It is unlikely that any efforts being undertaken against TSA by the ACLU, EPIC or other groups will get anywhere. TSA is acting on orders on cannot be held directly accountable no matter how egregious the transgression, one must sue the US government. Good luck with that.
The only realistic remedy is to sue the manufacturers for not incorporating privacy software into the base design. This could be construed as a manufacturing defect and subject these companies, L3 (ProVision) and OSI Systems (Rapiscan), to damages for invasion of privacy, emotional distress and similar claims. This would apply to those that have been screened, those who were groped by choosing WTMD and those who chose more costly travel options due to privacy concerns. Potentially a huge fee is available for some enterprising law firm.

Problem 2 – The invasive physical pat downs. These will be ongoing and beyond the degree originally proposed in the 2008 Congressional hearings. The reports of screeners continuing to assault passengers a month after Mr. Pistole declared that this “should never happen” illustrates the failure of TSA to adequately screen applicants and provide proper training before turning them loose on travelers. With a current screener turnover rate of 20% this problem will continue and TSA will likely accrue only the misfits who are unable to find alternative employment. Further, women seem more frequently subjected to, or offended by, these contacts.

Remedy 2 – Since TSA has virtual autonomy within the “sterile” area of an airport the only option is through political means. TSA is in bunker mode so any abuse by a TSO is quickly suppressed and covered with posturing statements, i.e. “for your security”, “improve training”, “the novice passenger doesn’t understand the process” and other platitudes. This program was implemented after the elections so there was no opportunity for voters to question their representatives on these policies prior to voting. The lack of response by elected officials posted on this forum indicates the @:-)degree of their indifference.

We must collectively identify, contact and support those officials, such as Chaffetz and Holt, who actively support our cause. At minimum a sticky thread be should be created listing supportive officials and contacts made. Ideally we would form a funded FF organization that could provide the necessary political, lobbying and legal resources needed to restore sanity to travel.

I once again call your attention to this thread.

I flew through PRG to LHR and MAN on the retrurn to PRG and was treated with dignity at all three airports. When I alarmed at MAN for forgetting to remove my watch, I was given an appropriate pat down and wanding. The wand picked up the titanium in my ankle (that never happens) and I was not asked about it or harassed. I was asked to remove my shoes, which were X Rayed. When I told the screener about our enhanced pat-downs, he was disbelieving at first, then he laughed and shared the information with his colleagues. I made it to the gate just on time.

I still believe the WBI and pat downs in the US violate the fourth amendment. I wish I was living in the States, because I am certain this egregious violation of our rights is actionable, the government negligent, and the TSA to be criminal.