Why is the Opt Out available?
 

I have been wondering why the TSA continues to even allow an Opt Out of the scanner. It causes more work for them, and it seems to be a generally unpleasant task.

Here are the possibilities I could think of:

1. They really did not think that many would choose the frisk, and by making it fairly unpleasant they could reduce its choice over time.
   
   
2. By offering the Opt Out, the passenger is choosing a frisk instead of the scan. By choosing a frisk, the passenger has given up his 4th amendment rights. It was his choice for the frisk.
   
   
3. Closely related is that by offering an Opt Out, they can argue that the scanner is not a 4th amendment violation in that the passenger could have avoided the scan by taking a frisk instead.
   
   
4. If refusing both, the passenger will be told, fine do not fly, and the only legal recourse is trying to convince a court to agree that there is a right to travel, and specifically travel by air. The 4th amendment argument can not be used as neither search was done.
   
   
5. The only passengers that might have a 4th amendment argument are those that get scanned and still have to get a resolution frisk. But even then, they could have chosen not to fly instead and we are back to a right to travel argument.

So, the continuation of having an Opt Out available, forces any legal action into a right to travel suit rather than a 4th amendment suit, which may be much more difficult to argue and win.

Now, IANAL, but many of you folks are and I respect your knowledge and opinions. First, is my analysis accurate? If yes, do you think the DHS lawyers planned it this way or did it occur by accident?

Some people can simply not stand, hold their arms above their head or stay still long enough for an Electronic Strip Search.

Know anyone who has rotator cuff issues? See if they can assume the surrender postion.

... or stand at all.

Covered that.

I should have been more clear.

Why would they offer an Opt Out for non-medical reason?

Of course it could simply be that they have no reason to ask about medical conditions and allow the passenger to Opt Out without stating a reason.

If it is as simple as that, then I am guilty of over-thinking this issue.

because a thorough patdown should be as effective as one of those xray machines, as for their official reason i'd be curious to know as well....

Because there's really no reason not to. Once they have to have an alternative screening process in place (e.g. for those medically unable to participate in AIT screening), there's no reason not to use it for other purposes as well.

Otherwise, you end up with situations where people might intentionally lie --- or obfuscate --- about their medical conditions simply to obtain an opt-out screening. Far better to just let people opt-out without requiring a reason.

At least, that's how it should work in theory. In practice ... well, we've seen what happens.

So, what happens if you go through the checkpoint with a sling on? A family member has torn both rotator cuffs, and has limited movement above shoulder height with one arm. He'd be willing to remove the sling (which he doesn't wear at all), but cannot, no matter how hard he tries, lift his arm very high.

Your analysis leaves much out: considering just one point, why has TSA always allowed anyone, for any reason, to "opt-out" of WTMD screening (didn't have to provide a medical reason) and receive the full pat down?

I think the opt-out is made available so that when people get cancer from excessive BKSX exposure and sue the government/airport/TSA/etc., they can be told "you could have opted out".

Opt-out of WTMD is necessary because it apparently violently disagrees with pacemakers.

A few days ago one of our TSA posters mentioned than nothing gets added to SOP that is not thoroughly vetted by the legal guys. If I am over-thinking this that would not be surprising as I do that a lot, but typically the SOP, or what we know about it, does not offer passenger options for much of anything. A lot of the threads here are how we must do things certain ways, even if it is illogical or proven ineffective. Yet, they continue to offer Opt Outs.

I was just wondering if the non-medical Opt Out was placed there by the lawyers to give the TSA a point to argue the inevitable court case that the passenger made the choice, we did not force him or her. "They chose not to fly instead of taking any of our reasonable alternatives and there is no right to fly."

My speculation is that they made a conscious decision that if they were going to defend or argue anything in court, they would prefer to argue that we have no inherent right to fly, not defend their decision to circumvent a 4th amendment right. They may not be this smart, just lucky.

I may be wrong. I often am, yet whether they considered the effect of the SOP before implementation or not, this has been the result in practice. It always boils down to a right to fly, a much more difficult argument than the 4th amendment one. The Opt Out makes this necessary.

I think there are a lot of issues at play, all designed to allow the TSA to do whatever it wants. I don't mean this in an emotional sense. The enabling legislation allowed the TSA administrator to take "whatever steps he/she deems necessary to protect the transportation system." (Not an exact quote, but it's close.) I know of no other federal agency with this type of blank check authority.

I think the theory posted above of it's easier to be sued for a right to fly issue versus a 4th amendment issue is very astute. Losing a 4th amendment case infringes upon or destroys the blank check. A right to fly loss does not.

Culturally, the TSA is a master at deflection. Offering a frisk deflects attention from having to resolve the Cancer Machine risks and the virtual strip search accusations. As a matter of fact, keeping the frisk option means that they will never have to confront these issues or be accountable for them. They know that people love to fly so much that they will subject themselves to one or the other, or both.

They also know that the vast majority of disabled or medically handicapped persons do not have the financial resources to sue the TSA. So, all they have to do is to hunker down, ride out the bad press for a week or so and open the checkbook for an occasional out-of-court settlement.

Also, they aren't overly concerned about bad press from frisking children. The vast majority of parents these days are highly competitive and will condone frisking kids as long as the victim isn't their own kid. (The Disney blog about the 6-year old pretty much confirms this hunch.) They will allow their own kid to be frisked because that alternative is better than having to deal with the aftermath of telling their kid(s) that they aren't going to fly to Disney World this year.

There is a larger than we think percentage of the population that actually trusts the government. The TSA can always count on them for support. it doesn't matter whether or not the supporters have ever actually flown or not. Each of them has one vote, just like you and me.

Yes, intimidation and punishment is definitely part of it. They are major elements of the TSA culture.

Francine's legal approach is not one of "Is it Constitutional and an appropriate response to the validated threat?" It is one of, "How far can we go this time?"

The TSA enabling act calls for establishing an independent greybeard board of experts which is supposed to independently validate every proposed TSA security measure. In the ~9 year history of the TSA, I do not think this board has met more than a couple of times.

Finally, keeping the frisk does not cost them a dime.

The Supreme Court stated long ago.
" Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country…may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

It seems TSA doesn't believe in this.

DHS/TSA has little belief or use for the entire Constitution.

The likely reason is for liability reasons.

A lot of people think the machines are safe, but they aren't. It's full body ionizing radiation specifically tuned to intersect soft tissues. It's about the "worst thing in the world" as far as cancer goes and it's absorbed about 1-inch deep into the body according to most reports, for children, 1-inch on front/back = a near full body depth radiation exposure ... it's sick.

Consider what happens when you get cancer from the machines, what are you going to do? File a lawsuit against the TSA? You'll be sitting in court arguing about this and then they say "why didnt you opt out"?

Also of note on this thread, the scanner manufacturers were obsessed about handling liability concerns from these technologies (and other domestic military surveillance equipment that has negative health impacts on the public).

In 2006 Rapescan was granted immunity from lawsuits under the so-called "SAFETY Act" if it kills people in its machines. Getting this immunity was one of the very first things they did.