Problems with the TSA
How you can help:
- Fill out my 3-question FOIA survey.
- Contact your senator/rep and ask them to support making the liquids rule a simple "just test it for everyone, don't ask about medical issues" policy.
- Video your experiences (and post to YouTube); file formal complaints every single time your rights are violated; don't give in to coercion to give up your rights.
- Known your rights with the TSA and the police. (And please share that!)
- 8/16 TSA: "A response to your complaint regarding your screening in Boston has been drafted and is currently under review. We cannot predict when the review process will be complete. A response to your complaint regarding your screening in San Francisco is being developed. We appreciate your patience."
- 4/08 15:34 PDT TSA has officially admitted to RightThisMinute that: "TSA’s policy allows medically necessary liquids through the security checkpoint once they have been screened. We regret that TSA did not follows its procedures recently at San Francisco International Airport when a passenger was not permitted to travel with liquids he declared as medically necessary. The passenger has reached out to TSA and we will respond directly to his concerns."
- 4/03 20:56 PDT SFO airport video has been released to me in response to my FOIA request. Raw video: part 1, part 2, envelope, letter
- 4/02 08:46 PDT Added point to FAQ re why the video isn't as shaky
- 4/01 22:09 PDT The TSA has finally started retroactively accepting comments on their electronic strip search program. I strongly encourage you all to click 'comment now' on that page and share your thoughts.
- 4/01 18:54 PDT SFO started in part and denied in part my FOIA in that incident.
- 4/01 13:47 PDT National TSA denied my FOIA because it "is too broad in scope or did not specifically identify the records which you are seeking". Looks like this is going to go to court. Quoting the DoJ FOIA guide (ch 3 p 47): "Although a FOIA request might be very broad or burdensome in magnitude, this does not necessarily entitle an agency to deny that request on the basis that it does not "reasonably describe" the records sought. Rather, the key to determining whether a request is or is not "reasonably described" is the ability of agency staff to reasonably ascertain exactly which records are being requested and to locate them."
- 3/31 17:49 PDT why we suck at understanding terrorism risk
- 3/31 06:14 PDT added proof of my neurological disorder
- 3/31 04:38 PDT added FAQ to cover some common comments
I have a neurological disorder that causes episodic muteness and muscle spasms. I always require medical liquids (namely, juice) at hand, and sometimes I require paper to communicate.
The TSA has a de facto program of violating the rights of disabled travelers like me, and I'm fed up with it. They're routinely violating not just clearly established law, but their own policy. I want this to stop.
I'm currently pursuing administrative & civil action against the TSA for these incidents below. If you know any good lawyers admitted to California, Massachusetts, or Federal practice, who are knowledgable in the ADA / Rehabilitation Act, §1983 or Bivens actions under the 1st and 4th amendment, and/or FOIA litigation, please email me.
I believe that the public has a right to know what the TSA's rules are. Therefore, I've submitted a FOIA for essentially all of the TSA's policy & procedures documents on public interest grounds. If these are of interest to you, please fill in my simple 3 question survey; it'll help me a lot in pursuing this.
Right now, the TSA's "recommended but not required" stance encourages agents to violate travelers' rights by forcing them to disclose their disability and encouraging someone with no medical training decide whether something is "medically necessary" or not.
Instead, I think that the TSA's policy on liquids should be simple: if it's over one quart, it gets tested. The end. No questions, no having to out yourself as disabled. They have dedicated machines for doing this, called liquid container screening devices, that take only about 30 seconds to use — but they simply refuse to. If you agree with me, please contact your senator or representative and ask them to support this change in policy.
My own incidents (click first link on each for full details):
On January 21, 2013, Boston Logan TSA conducted an illegal search of my xray-cleared documents (probably motivated either by my opting out or by my use of sign language to communicate). They refused to give me access to the pen and paper that I needed to communicate. Eventually they gave it to me, but then they took it away in direct retaliation for my using it to quote US v Davis and protest their illegal search (thereby literally depriving me of speech). They illegally detained me for about an hour on spurious, law enforcement motivated grounds (illegal under Davis, Aukai, Fofana, Bierfeldt, etc).
I filed formal ADA grievances with the Logan and national TSA, as well as complaints with the Department of Justice, Massachusetts Commission Against Discrimination, and Massachusetts Attorney General's Office. So far, TSA has refused to comply with the ADA grievance process; they are over a month beyond the statutory mandate for issuing a written determination.
I also filed FOIA / Privacy Act / evidence preservation on all involved parties. Massport claimed that merely confirming or denying the existence of the video would be disclosing "sensitive security information" (SSI) and refused to comply with the FOIA rule that requires that, instead of full denial, SSI just be redacted to the minimum extent necessary.
On March 1, 2013, San Francisco TSA refused to allow me to travel with medical liquids. My liquids had been been tested clean by xray & explosive trace detection, and the official on scene specifically acknowledged reading the TSA's Special Needs Memo (including that juice is a medical liquid and that there's no volume restriction on medical liquids). This directly involved the most senior TSA officials at the airport, who detained me for about 50 minutes total.
This is only the most recent in a long string of personal incidents of harassment, denial, or direct refusal to obey TSA's medical liquids policy. This time, though, I got it all on video:
I have filed formal complaints w/ DoJ Disability Rights office, national TSA Office of Civil Rights and Liberties, SFO TSA, SFO ADA Coordinator, and the office of Nanci Pelosi. I have yet to hear back from them more than an acknowledgment of receipt.
I have also filed FOIA / Privacy Act / evidence preservation demands with the national TSA, SFO TSA, SF Airport, SF Airport Security, and Covenant Aviation Security (SFO TSA's contractor). SFO airport video has been released to me in response to my FOIA request. Raw video: part 1, part 2, envelope, letter.
Looking for a fight?
As I mention above, I've had similar things happen to me many times before. This time I came prepared to document it.
I followed the letter of the law, I was courteous. I demanded that they follow the law too.
I don't think that in any system that truly obeys the rule of law, those actions should be considered "looking for a fight". If they obeyed the rules, there would have been no problem. They didn't. My response to that was as measured as it could be without giving up my rights.
Why wasn't the video shaky?
My tic is heavily right-lateralized. I used my left hand to hold the camera (or tucked it into my waistband); otherwise it wouldn't have been good evidence. See proof video below if you still think I was faking it.
FOIA vs lawsuits
They're separate things. I'm pursuing the policies & procedures FOIA because I think the public has a right to know what the TSA is doing, and what they demand that you do. Something as basic as their current screening management SOP is not currently public, which IMO is unacceptable.
(Not to mention that courts have found that the TSA is in violation of the Administrative Procedures Act for failing to actually give the public a say on whether to institute electronic strip searches as their primary screening tool, but that's another issue… see EPIC v TSA for that one; it's not my fight.)
I do expect that some of the documents I obtain via FOIA will also help my personal cases, but that's just a bonus. I have separate FOIA requests dealing with my own cases.
I should also note that I have not yet filed civil suit against the TSA — I'm doing what I'm supposed to, namely giving them a chance to handle it administratively first. I've done everything that I can to handle it amicably. So far, they're refusing to cooperate. Continued refusal is what would trigger a civil suit.
I don't think I can do anything but quote the TSA's own policy here:
There is no limit on medical liquids. Period. There is no ambiguity in that statement, and it's not just my interpretation. And the Special Needs Memo says clearly that juice (and water!) is a medical liquid.
As for why I travel with 3L of liquid: it's a cross country flight. Flights get delayed; I've occasionally had to stay overnight in an airport. I need to drink on a very regular basis. I carry enough liquids with me to ensure that I'm covered for contingencies. (I also carry with me extra food, snacks, etc. I don't want to be dependent on airport concessions for things I need to stay healthy.)
Splitting it into separate 3 ounce bottles is absurd, irrational, and not something I could even do. (Who carries a bunch of empty 3 ounce bottles to drink from? O.o)
BTW, there's no such thing as a "prescription" for juice. It's doctor recommended, but you buy it in a grocery store, and you buy whatever sort you prefer. I happen to prefer aloe vera 'cause it's soothing.
Is juice medical for me?
Frankly, that's none of your business to determine. And it sure as hell isn't the TSA's. They aren't HIPAA compliant, medically trained, or anything of the sort. Their job is simply to screen for weapons, not to determine medical necessity.
I did discuss this with my actual neurologist, who did recommend that I have juice on hand. My needs are somewhat similar to those of diabetics: when I don't have liquid and sugar very regularly, I have more episodes. And during an episode, it lessens the severity to have juice immediately to hand.
Why aloe juice in particular? My three favorite juices to travel with are aloe juice, Odwalla Superfood, and strong ginger beer. I find that they help alleviate side effects like nausea, while ensuring that I have about the right amount of sugar in easy form. I don't claim that any of them are specifically anticonvulsants or the like; they're just the juices I prefer to use.
Why not just give up my liquids and/or tell them medical info?
Because it's a violation of my 4th amendment rights, and because the law (including TSA rules) do not require me to do so. (Not to mention, they're not HIPAA compliant…)
I tried to be extremely polite throughout, even though I was pretty angry. I don't think that yelling helps anything. But there's a big difference between being polite, and giving in to an unlawful demand.
I don't believe that I should have to give up my privacy *or* my ability to bring with me liquids of my choice. Their job is simply to make sure that what I bring isn't an explosive, and I totally support that. If they want to x-ray, ETD, LCS scan, whatever, I'm perfectly cool with it.
What I'm not cool with is the intrusive questions or the seizure of something that's not a weapon.
Yes, I could probably have gotten through this situation easier if I had just given up my right to privacy. But I would rather change the system by standing up for all my rights, so that in the future nobody has to get harassed and coerced, than get by one particular incident.
Yes, under the law they're allowed to *ask* — just like cops are allowed to "ask" to search your car and you're allowed to tell them "no". I find both "requests" to be offensive attempts to intrude on someone's privacy, and I choose to say no.
Honestly, I shouldn't have to even out myself as disabled in the first place, let alone be subjected to medically ignorant scrutiny about the legitimacy of my disability or the things I use to alleviate it.
They can and should simply test whether or not my stuff is dangerous.
Administrative law etc
Yes, the TSA has the right to deference in interpretations of the law that it regulates. However, the Davis standard is an interpretation of the 4th amendment by the courts, one that's been repeatedly upheld, and which limits the TSA's purview. In Bierfeldt, the TSA settled — because they admitted that subjecting someone to search based on carrying a lot of money is not something they're allowed to do.
In particular, the TSA does not get to interpret the 4th Amendment; courts do. The TSA gets to interpret only their own administrative law, not to decide what is "reasonable".
I actually support the Davis standard; I agree that the TSA should have a limited exemption for administrative searches narrowly tailored to the search for weapons or explosives (and not for e.g. drugs, money, juice, documents, etc). I agree that that very narrow scope of search is "reasonable", and that it doesn't require probable cause or suspicion.
However, in both of my incidents, there simply was no question of weapons or explosives. The SFO liquids had been thoroughly screened and were denied anyway; the BOS bags were x-rayed and then subjected to search of *documents*, which the TSA is forbidden from doing (see e.g. Aukai, Fofana, Bierfeldt).
Re. choice of law: it's arguable whether the ADA applies, but the Rehabilitation Act is more or less equivalent here. Same goes for Bivens vs 42 USC 1983. I didn't get into every legal nicety here; that's what a formal pleading is for, not a summary webpage & youtube clip. :-P
Also, this wasn't a border search — I was flying within the US. And the TSA is not authorized to search or seize anything other than weapons or explosives.
What it comes down to is simple: juice is not a weapon or explosive.
The TSA has absolutely no authority to seize juice, when they are capable of telling the difference between juice and explosives, which they are (and did). Questioning me about my medical information has no bearing whatsoever on whether they can distinguish juice from an explosive, and therefore it is not permitted under the Davis standard.
Yes, the people screening me up through the assistant manager were all Covenant employees. TSM Smith was not, nor was DFSD Adams.
Regardless, they are TSA agents, uniformed as such (co-branded with Covenant) and with all the same duties / responsibilities. There are some minor technical differences about how it falls out legally, but it isn't really relevant to any big picture questions, so I didn't bother to mention it.
Some people seem to doubt that I have a real neurological disorder. Here's a video I made for my neurologist documenting one moderately severe episode a couple years ago, in which I become briefly unable to breathe. (Warning: it's pretty unpleasant.) That kind of episode is what I try to avoid by carrying liquids with me at all times. And here's a letter from my neurologist explaining my need for constant access to liquids, paper, etc.