A Very TSA Thanksgiving

With the busiest travel days of the year fast approaching, the news media has been focused on the latest developments at the Transportation Security Administration, which has overseen airport security since its creation in November 2001. After an attempted airplane bombing on Christmas Day 2009, TSA stepped up its deployment of Advanced Imaging Technology (AIT) machines, which are expected to eventually replace the traditional metal detectors at most airports. (A list of airports which are currently using the new screening technology is available on the TSA’s website.)

The new machines, which produce X-ray-like scans of passengers that are monitored by an officer at a remote location within the airport, stirred immediate controversy among civil-liberties groups for their detailed imagery (revealing everything from artificial joints and other medical devices to the outline of genitalia) and potential for misuse by staff. (Although TSA promises that travelers’ faces are obscured by the software and that the body scans are not stored, the machines are capable of saving and transmitting the images. Furthermore, at least two disciplinary incidents have been reported where security officers made disparaging remarks about the content of the body scans – one in Miami and one in London.)

In addition to the concerns about personal privacy, others have expressed reservation about potential health risks from radiation. While the TSA information page assures travelers that the new AIT machines provide a lower dose of radiation than cell phones (or two minutes of the flights for which passengers are being screened), some of the most frequent fliers – i.e., pilots – are unconvinced. Last week, the pilots’ unions from US Airways and American Airlines urged their members to opt out of the AIT screening, citing potential for serious health risks due to frequent exposure.

So what happens after a pilot-- or any other passenger-- “opts out” of the AIT screening? The secondary method of screening is usually a pat-down search, although the procedure has allegedly become more invasive since the deployment of the AITs. (For details, compare TSA’s official blog on new procedures with Jeffrey Goldberg’s humorous first-person account from The Atlantic).

For some, the choice between a full-body scan or a physical pat-down is a true dilemma—and one, it turns out, with potential legal consequences. Over the weekend, a California blogger described his experience with security at the San Diego airport, after he refused both the AIT scan and the pat-down, requesting instead to be screened through the traditional metal detectors. When TSA officers escorted him out of the security area and he obtained a refund for his ticket, the blogger was approached by a security supervisor who informed him that “once I start the screening in the secure area, I could not leave until it was completed,” threatening him with a civil suit and a $10,000 fine if he did not comply. On Monday, the TSA confirmed the blogger’s allegations in a statement, citing a 9th Circuit Court of Appeals ruling to support its contention that those who refuse to complete security screening could face civil penalties. (Although the news reports do not give more detailed case information, savvy legal researchers should be able to use the court’s quoted language to easily track down U.S. v. Aukai, 497 F.3d 955, 960-61 (9th Cir. 2007); text at Google Scholar.)

More developments are certainly coming, with a Senate committee hearing on TSA oversight scheduled for Wednesday, November 17. A grassroots effort to declare Wednesday, November 24 to be “National Opt-Out Day” will also raise public awareness of the new TSA policies and procedures.

To learn more about the history and activities of the TSA, check out the “Information About Agencies” section of our research guide to Federal Administrative Law. And if the current airport security measures give new meaning to “fear of flying” this holiday season, remember that current Duke Law students, faculty and staff will retain 24-hour building access over the library’s Thanksgiving closure.