The Transportation Security Agency’s (“TSA”) Screening of Passengers Through Observation Techniques (“SPOT”) program, aimed at revealing potential security issues at airports, was roundly criticized by the Government Accountability Office (“GAO”) in a report released Friday, November 15, 2013. The report found that the results of the three year old program, employing approximately 3,000 “behavior detection officers” at 146 of the 450 TSA regulated U.S. airports are unvalidated, that the model used to confirm the program’s efficacy was flawed and inconclusive, and that the report used improper control data and methodology and, thus, lacks scientific proof that the program could identify potential assailants.
The program’s critics include Steven Maland, a GAO Managing Director, Representative Benny Thompson of Mississippi, ranking Democrat on the House of Representative’s Homeland Security Committee, and the Chairman of that Committee, Michael McCall of Texas, all of whom take the position that “the proof is in the pudding.” They cite the recent attack by a gunman at LAX during which TSA officers at the security checkpoint failed to push the panic button to alert local authorities, but instead used an abandoned landline, giving the gunman the opportunity of four minutes and 150 rounds of ammunition before he was stopped.
The controversy over the invasive body scans and pat-downs by the Transportation Security Agency (TSA) seems to have temporarily blown over. However, with Christmas vacation on the way, they are certain to arise again. When they do, it is important that the public, and particularly that segment of the public with an interest in, or connection to, airports and aviation, be aware of the full scope of the constitutional and legal rights and restrictions governing these searches.
As a threshold matter, it should be understood that the searches by TSA, an agency of the United States government, are of the sort of governmental action covered by the Fourth Amendment to the United States Constitution. The Fourth Amendment contains a prohibition on “unreasonable search and seizure.” Under the case law that has developed over more than 200 years, a search is “reasonable” under only two circumstances: (1) if there is “probable cause” to believe a criminal act has been committed by the person being searched; or (2) absent such “probable cause,” if a party has given consent to the search. If there is no probable cause, or consent is not given or it is withdrawn, an American citizen may not be searched by an agent of the government constitutionally.
Historically, General Aviation (GA) airports have not been subject to Federal rules governing airport security. Prior to September 11, 2001, the Federal government’s role in airport security focused exclusively on airports serving scheduled operations. Following 9/11, Congress enacted the Aviation and Transportation Security Act (ATSA), which created the Transportation Security Administration (TSA). The TSA was established to develop, regulate and enforce security standards for all modes of transportation. In the ATSA, Congress transferred most of the Federal Aviation Administration’s (FAA) civil aviation security responsibilities to the TSA.
In May 2004, TSA published Information Publication A-001, Security Guidelines for General Aviation Airports (“Guidelines”). The Guidelines provide GA airport owners, sponsors and operators a set of security best practices and a method for determining when and where security enhancements would be appropriate. The Guidelines do not contain regulatory language, and do not require that GA airports meet the same security requirements as commercial airports. The Guidelines are not mandatory, and do not establish any criteria that must be met in order to qualify for Federal funds. (TSA does require GA facilities located within the Washington D.C. Airspace Defense Identification Zone Flight Restricted Zone to implement security measures.)
The January 2, 2010 edition of the Los Angeles Times contained an op-ed piece by David Steinberg (not the comedian, but a screenwriter from Santa Monica). The editorial beautifully capsulizes the irrationality of the Transportation Security Agency’s response to the recent attempted bombing of a Delta airliner bound for the United States from Amsterdam in which the TSA instituted regulations during an overnight session (when participants were apparently not fully awake). Those regulations, governing incoming flights to the U.S. from certain foreign airports, include requiring that passengers remain locked in their seats during the last hour of flight, and removal of all pillows and blankets to overhead bins during the same period.
In his editorial, Mr. Steinberg recounts his family’s odyssey home from a vacation in Aruba the day after the attempted bombing. Their adventure included: (1) the baggage handler, designated as “frisker,” becoming embarrassed as he patted down Mr. Steinberg’s four year old son; (2) the same “frisker” apparently recognizing the absurdity of his act, gratefully passing on the frisk of Mr. Steinberg’s two year old daughter; and (3) Mr. Steinberg’s two year old screaming “bloody murder” as the flight attendant yanked the pillow from under her head.
Honestly, when does enough arbitrary and capricious regulation become enough? First, the government mandates that passengers have to practically disrobe to get on a plane. Now the government wants to regulate when passengers can go to the bathroom once they get there. And for all that nonsense, the attempted bomber got on the plane to the United States, with explosives, not in his shoes, but in his underwear! Does that mean passengers will now have to take off their underwear and put it through the scanner?
During July, the Government Accounting Office issued several reports regarding various aviation topics. One of the topics not covered was the East Coast Airspace Redesign, which was supposed to be issued at the end of July, but now probably will not be issued until the end of August.
Of particular interest was the issuance, on…