Thursday, February 21, 2008

And Now, a Word from Our Lawyers…

Since there are no lawyers on the blog team, they asked me to weigh in on some comments that have come into the blog on legal and constitutional issues. I'm the Chief Counsel at TSA, Francine Kerner, and I hope I can provide some useful information to those interested in the legal aspects of the screening process.

In regard to comments questioning the constitutionality of TSA's airport security screening procedures, the courts have addressed the issue and disagree with the notion that our procedures are unconstitutional. TSA takes the rights of the traveling public very seriously, and in implementing security screening measures, carefully weighs the intrusiveness of those measures against the need to prevent terrorist attacks involving aircraft. Balancing the same considerations, the courts have long approved searches of airline passengers and their bags for weapons and explosives as constitutionally permissible under what is now commonly referred to as the "administrative search" or "special needs" exception to the Fourth Amendment warrant requirement. See, for example, United States v. Edwards, 498 F.2d 496 (2d Cir. 1974). More recently, the courts have ruled that TSA procedures involving identification checks and passenger screening satisfy the requirements of the Fourth Amendment and properly respect the public's qualified right to travel.

See, for example, United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007); United States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006).

I see that at least one person was troubled by the fact that TSA's screening of airline passengers sometimes yields evidence of crimes not directly related to aviation security. Our responsibility and focus in the airport screening process is to prevent a terrorist attack involving aircraft. In the course of carrying out our mission by screening for weapons and explosives, however, we sometimes incidentally discover illegal items unrelated to transportation security. Federal law and policy require that we refer such items to law enforcement officers for appropriate action. See, for example, United States v. Marquez, 410 F.3d 612, 617 (2005).

To the commenters who have complained about receiving secondary screening despite not having alarmed the walk-through metal detector, there are several reasons why an airline passenger may receive additional screening. For example, some passengers are randomly selected for secondary screening in order to help detect dangerous items that might not alarm the metal detector. Adding this element of randomness to the process makes manipulating the system more difficult.

And finally, to address the comments that expressed concerns about screening in retaliation for voicing complaints about TSA: it is not TSA's policy to subject anyone to additional screening because of their political views or complaints about the screening process. However, threatening a security officer may trigger additional screening.

Thank you for the opportunity to respond to your concerns.

update by Francine on 2/27/08:

To date, we have received over 100 responses to our post regarding TSA's legal authority to conduct security screening at airports. Many of your responses raise questions about the authority of TSA personnel to request a name or other identifying information (ID) from a passenger. You also want to know why the information is requested, how the information is used after you provide it, and whether TSA is following the requirements of the Privacy Act of 1974 (Privacy Act), 5 U.S.C. § 552a, in requesting and using your personal information. Today's post will answer these questions.

In simple terms, the Privacy Act is a statute that controls the government's collection of personal information for later use. This is an important point. Merely asking a traveler to provide ID for a quick examination at the checkpoint does not trigger application of the Privacy Act as long as the agency is not making a record of the information to use in the future. In contrast, if TSA records a traveler's name or other identifying information with the intention of filing the information so that it can be retrieved at a later date by the traveler's name or ID, the agency is required to comply with the provisions of the Privacy Act.

During the screening process, TSA tries to identify individuals who may be planning to do us harm now or in the future. TSA tries to prevent potentially dangerous items from being brought into the boarding area. Finally, TSA responds to incidents that occur during the screening process. A passenger may need medical assistance, screened property may be damaged, lost or stolen, or an individual may become abusive in challenging a screening determination. Handling of these or any other matters may lead TSA personnel to request a traveler's name or other identifying information for filing in a Privacy Act system of records.

As a general matter, information filed in a TSA Privacy Act system of records may be used for a variety of security and administrative purposes. It may be used to identify individuals who require special screening procedures. It may be used to pursue a criminal prosecution or a civil enforcement action. It may be used to evaluate an injury or property claim, or to respond to a passenger complaint. TSA has listed all of the routine uses for the information it collects in the Privacy Act system of records notices published by the agency in the Federal Register. Most of the personal information collected in connection with the screening process is kept in a TSA system of records entitled DHS/TSA 001 Transportation Enforcement Records System (TSERS). See 69 FR 71828 (Dec. 10, 2004).

In some situations where TSA collects information directly from an individual, the Privacy Act requires TSA to provide a written notice to the individual setting forth its authority to gather the information and describing how the agency will use the information. One example of a TSA Privacy Act notice appears on the comment card that may be obtained at some screening checkpoints. Requesting a comment card should not result in harassment of any traveler. Additionally, TSA will accept anonymous comments either by filling out a comment card or by forwarding comments to the TSA Contact Center at

Under the Privacy Act, any individual may submit a request to TSA to obtain the information we have on file about the requestor. With rare exceptions, which are set forth in the Federal Register, we will provide the requestor with the information we have in our files.

If you wish to see a further discussion of the Privacy Act, please see our Web site, at:

Thank you for your comments and questions about the Privacy Act. We hope that you will check back on the Blog for future posts regarding legal issues.