Ask a Lawyer: TSA Pat Downs and Passenger Rights

Rights

The outrage has been loud and clear over the latest security measures enforced by the Transportation Security Administration.  So much so that websites like OptOutDay.com and WeWontFly.com have developed a following, and some people are forgoing travel plans altogether during the upcoming Thanksgiving weekend.

Do passengers have the right to be upset, or is this all just a craze created by a few isolated events and media coverage? What options do people have for “comfortable” travel?

We asked California First Amendment Attorney Marc Randazza of the Randazza Legal Group a few questions. He offers a candid opinion – let us know if you agree with his assessment.

Avvo: Can you provide a brief overview of what the new TSA security policies are all about, and why they have been implemented? And most important, are they effective?

MR: The New TSA policy is this:  that a certain number of passengers will be required to go through the enhanced scanning machines.  These are commonly known as “virtual strip search machines.”  Ostensibly, these are optional, and if a passenger wishes to opt out, he or she may.  However, opting out comes with a price — the passenger must then be thoroughly frisked, in a manner that is more thorough than I have endured both times I was locked up in a jail cell.

Why have they been implemented?  A very deep question.  The stated reason is to make us more safe when we fly.  My belief is that this is utter nonsense, and that they have been implemented as part of the “Post 9-11 giddy civil liberties message” that we have all been forced to endure, because questioning anything that is done in the name of combating terrorism is tantamount to treason.  Once the government gets away with it here, why not expand it to stadiums?  (as they did) or to trains?

The point here is security theater.  Make us all scared that we could be blown up at any minute, and we’ll gladly deal with those who put on a show of protecting us.

Avvo: It has been reported that people are being subjected to these “pat downs” because they refuse going through a full body scanner. So is this happening at every airport, or only the ones that have this newer technology?

MR: Only those with this technology as far as I know.

Avvo: Does the TSA have the right to enforce these types of security measures? What if someone does not want to go through the full body scanner or through the “pat down” process?

MR: The only person with a right to complain is Russ Feingold or anyone who voted for him.  The law says that if you want to fly, you have to do what the TSA tells you.  And, if you find it offensive, you need to think about that before you go to the airport, because once the screening starts, if you decide you don’t want to go further, the government can fine you $11,000.

So yes, the TSA has the right, and anyone with a problem with it should shut up unless they protested on September 12, 2001 that they didn’t want our civil liberties taken away in the name of the war on terror.  Anyone who voted for George Bush should doubly shut up.

Avvo: If someone has been “pat down” in a way that they feel was inappropriate, what should they do? Can they take legal action against that TSA official or the TSA as a whole?

MR: “Sure”, good luck with that.

Avvo: What are your thoughts on the call for an “opt out day” being organized for the day before Thanksgiving? In addition to creating tremendous delays, won’t this actually create more opportunities for “pat downs”?

MR: I think it is a wonderful idea.  However, there should not just be an “opt out day.”  Passengers should do everything they can to resist.  First thing we need to recognize is to stop swallowing this story that the poor front-line TSA agents are just honest people doing their jobs.  They are not. We are all Americans, and we all have a responsibility to resist when these kinds of idiotic changes are made.  I’m sure that there were plenty of very nice civil servants just doing their jobs behind the iron curtain when they spied on their neighbors.  People were just doing their jobs when they locked up Japanese Americans at Manzanar.  People were just doing their jobs when they herded Jews into cattle cars in the 1940s, right?

So what do we do?  When I was in the Army, I was taught that if you are taken prisoner, you have a responsibility to make your captors work as hard as they can to hold you.  Same in this situation.  We must resist every way possible — and that means stop being polite to TSA agents.  And I don’t just mean at the airport.  Abuse them if you know them in “real life.”  I wrote on that here.

Write to your congressman (ha, like that will matter).  Buy a refundable first class ticket and then cancel at the last minute, explaining that you don’t want to be subject to this, and that the airlines haven’t done anything to help, so you refuse to fly.  Get creative.  Don’t be silent about it.  Try and influence others to resist too.

Do you have questions about the TSA security pat downs? Let us know in the comments section and we’ll get you answers.