Problems with the TSA | Hacker News Reader

Problems with the TSA

saizai.com

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My mother can't travel by plane, because she has aphasia (can't speak) and a leg brace, due to her stroke.

If I go through the airport with her, there is no guarantee the agents will let me stay with her and explain the situation. She can't remove the leg brace on her own for them to make sure it's not a weapon, and TSA agents can't do it properly.

So, basically, taking her to the airport is a recipe for having her verbally abused (treated like a mentally handicapped or non-cooperative person), and then physically abused (TSA agents going under her clothes to determine that she's just wearing a leg brace).

Maybe there's some special procedure for dealing with this, but it's easier to just not travel than risk it.

The TSA is a direct, overt violation of the 4th amendment (search and seizure). Thus, the US federal government is not legitimate under the US Constitution. (No, I am not advocating rebellion, violent or otherwise.)

If we simply let the airlines handle their own security, which is not a violation of the 4th amendment, none of this would be an issue. Moreover, it would make air travel and security screening a voluntary relationship between consenting parties (travellers and airlines), instead of a coercive relationship between two consenting parties and government agents.

> If I go through the airport with her, there is no guarantee the agents will let me stay with her and explain the situation.

I am - without being an expert - pretty sure there is a procedure for care givers.

The last time I flew - 2010 - it was a few months after my wife had bi-lateral knee surgery. She was mobile, but not spry, not able to walk more than fifty yards at a go.

We had an airport provided wheel chair, a guy or gal to push. My role was care-giver and I got to be with her throughout the procedure. 'Is this your care giver - step this way, Sir.'.

Worked pretty well: the pusher person knew where to go, the TSA goons got us to the head of the line and it worked out.

I don't know about the leg brace, though. That might be a problem.

I'm with you on the TSA being bad news and a worse idea. The day it was announced I knew it would be a goat rope, a hit against the 4th amendment and would never, ever, go away.

But I am old enough to remember when airports had observation decks for the public, anyone could march down to the gate with only a nod to the sleepy airport guy running the scanner, and if you'd told anyone what's going on in 2013 they'd snort and say

'Maybe in the USSR, it's run by commies. But never in the USA.'

> I am - without being an expert - pretty sure there is a procedure for care givers.

I think half of the problem is the plethora of examples where the TSA does not even follow their own procedures, making this moot.

Can she not carry a written note (perhaps signed by a doctor) to hand to the TSA agent explaining her situation?

That would be a start, but there's no _guarantee_ that they will abide by the note.

Besides sometimes being coarse and unhelpful, there are _many_ documented incidences of abuse on the part of the TSA. I would not feel comfortable with the TSA even taking her out of my sight, because if anything abusive happened, she would not be able to communicate that, due to the aphasia.

It's surprising that people can be so nasty, but while a lot of the TSA people are decent folks that think they're doing something patriotic, some of them are bottom-of-the-barrel scum who would not be employable anywhere else. And some of them get off on having unchecked power.

There might actually be some kind of procedure to go with a person as a caretaker and be allowed to _stay_ with them, that I'm just unaware of.

The TSA is a direct, overt violation of the 4th amendment (search and seizure). Thus, the US federal government is not legitimate under the US Constitution.

Don't be so fucking stupid. Apart from the obvious argument that flying is a privilege and not a right, and that you don't need to fly (however impractical this is), even if you were right on the 4th amendment argument it doesn't mean 'the US federal government is not legitimate.' That's just magical thinking. Please, do yourself a favor and read up on the concept of severability. I'm sorry to be so blunt but when you make absurd claims like that then you just chuck your entire argument into the toilet and pointlessly marginalize yourself.

Now what would be worth exploring is a constitutional challenge to the TSA under the equal protection clause because of your mother's disability. But declaring the entire government illegitimate? Don't you think that with so many lawyers in the US and almost 12 years since the TSA was created, if your idea held any water that it would have been the subject of a major legal battle by now?

USSR existed for 69 years, no major battles were brought over institutions like KGB, that were breaking the democratic soviet constitution.

Take it easy with the tone. No need to be confrontational.

Being confrontational is very often a great strategy, especially in front of a dumb crowd (luckily the Eternal September is yet to happen in full force here).

But (a) I'm not dumb (I was the guy being confronted), and (b) that is not a great strategy on HN because you will be downvoted to oblivion, as happened in this case.

Not generally on the weekends. I've maintained for some time now that HN gets more spiteful, vindictive and petty starting Friday evening and in to Monday morning, every week.

"Apart from the obvious argument that flying is a privilege and not a right"

Really? Why is that true? Who gets to decide what's a "right" and what's a "privilege"? On what basis is that determined? What's the means by which the public can challenge those decisions?

Without appropriate answers to those questions, in what way is a society operation under those rules not a totalitarian state?

Well, there's this thing called the Supreme Court, which has established various lower courts, and if you don't like the way things are you find a sympathetic lawyer and file a lawsuit in which you make your argument about how things ought to be different.

I don't like to be condescending, but come on, this stuff is in the constitution too. I feel like sometimes people just read the bill or rights and completely ignore the rest of the thing.

There's no such concept as "a privilege" in the constitution. The constitution isn't a definition of what citizens can do, it's a definition of what the government can do. Like I don't give a crap about the rest of this dumb argument, but drawing some weird distinction and calling one thing a privilege and another a right while wrapping it up int he Constitution is vapid.

Article I Section 6:

The Senators and Representatives shall receive a compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Article I Section 9

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article IV section 2.1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State [...]

I personally don't care for textualist arguments, but the concept of privilege is explicitly mentioned 4 times in the Constitution.

EDIT: I'm getting downvoted for pointing out a fact, with citations. Impressive.

No, the word "privilege" is mentioned 4 times. None of those instances are used in the same sense as you're using the word. Anyway this has officially crossed into the absurd. You win, bye.

These uses of the word "privilege" are all defining rights, not privileges in the sense you mean. Here is an example of Supreme Court jurisprudence on the Privileges and Immunities Clause (from the landmark Slaughterhouse Cases):

[P]rivileges and immunities....are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State....

Or were you claiming above that flying is one of those rights which are fundamental?

Of course not. I was simply responding to the incorrect assertion that the concept of privilege isn't mentioned at all in the constitution. I pointed out that it is.

As far as the type of privilege, consider the privilege of immunity from arrest and accusations of libel etc., that members of Congress enjoy - but only within the legislature. This is a quite limited one, contingent on being a lawmaker and being engaged on legislative business. I mistakenly thought that this would be obvious from a reading of the text.

Of course I am not arguing that flying is a fundamental right. I rather describe it a privilege precisely because it is not fundamental, as observed upthread: https://news.ycombinator.com/item?id=5467700

The Constitution uses the word "privilege", but it does not mention the concept of privilege as you are using it. "Privileges" in the constitution aren't distinct from or weaker than rights - they are considered fundamental rights. The Supreme Court said so and I think their interpretation counts for more than yours.

That is probably why you got down voted - your citation is factual, but completely misleading in context.

To address the specific example you mention here: the privilege of immunity from arrest for members of Congress cannot be infringed except for specific enumerated exceptions. It's not the kind if "privilege not a right" that may be arbitrarily harshly regulated that you were talking about.

The law is not stupid. Courts understand that words have more than one meaning and that context matters. Given how rude and condescending you have been on this thread, you should learn more about how constitutional law actually works.

There are appropriate answers to those questions, which come from the field of philosophy, but are generally unrecognized. Which is precisely why the US _is_ heading in the direction of totalitarianism.

Here we go again, another "flying is a privilege" argument.

Flying is a right: " A citizen of the United States has a public right of transit through the navigable airspace." From http://www.law.cornell.edu/uscode/text/49/40103

I choose to exercise that right by hiring air travel with an airline.

Airspace is a public resource that belongs to everyone.

Keep reading.

Weren't you claiming earlier:

"I'm offering you a communication channel to studio executives right now." https://news.ycombinator.com/item?id=5458900

And you say stuff like you do not have a right to fly?

Too bad there's no way to have HN not show me any of your replies (without scripting).

I fail to see what my professional and personal friendship with people in the movie industry has to do with my opinions on the legalities of flying.

Too bad there's no way to have HN not show me any of your replies (without scripting).

Well, you could put a paper bag over your head when you see one coming.

> I fail to see what my professional and personal friendship with people in the movie industry has to do with my opinions on the legalities of flying.

Both of these advocate taking away rights from the citizens, the rights for which we have paid a heave price.

No they don't.

Yes they do.

Your comment history suggests that you are a crusader: willing to take great risks defending those whom you identify with, but uninterested in defending a disabled mute's right to participate in our modern society. Your arguments, however well constructed, are built on a self-serving foundation.

On the contrary, I said what I think would be an effective challenge to the TSA above. Shooting yourself in the foot (argumentatively, by unilaterally declaring the entire government to be illegitimate on spurious grounds) and then hopping about saying 'look what you made me do!' is not an effective way of changing things.

What the hell does this even mean? What's wrong with you? In what parallel universe is it civil for you to take a disagreement about the law with someone you don't know on a message board and parlay it into a claim that they don't care about "disabled mute's rights to participate in our society"?

That settles it, then: "the US federal government is not legitimate under the US Constitution."

I think you are confusing the right to public transit with the right to transit with any commercial carrier through any engagement of your choosing...

Which is unfortunate, because I agree with your point but I don't think the law backs you up here.

So, I have a right to fly, and American Airlines has a right to fly, but the two of together lose that right?

Transit through navigable airspace is a right. Is transit with any cargo I choose a right? If it is, why doesn't that mean I have a right to fly with a concealed weapon?

Calling someone you disagree with "fucking stupid" strongly suggests an argument based on empty emotion, not reasoning.

"Privilege" is a false concept in any political discussion. Privileges are granted by the owner of the privilege. But the government does not own my life, nor any aspect thereof, nor any aspect of anybody else's life, including their property. We are not owned by the government. To hold otherwise is fundamentally anti-freedom and pro-authoritarian.

So to reduce that to this particular case: The government does not own airlines, airplanes, airspace, or myself. And even though it does own airports, _we_ (the people) paid for that. So, flying is not a privilege.

Privilege is not a false concept just because you don't like it. Whether or not you agree with the policy, you can't just ignore the existence of Supreme Court jurisprudence because the SC is the arbiter of these questions per the Constitution itself.

And as for reason, I directed you to the concept of severability. Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality. Lots of laws have been overturned as unconstitional, as have many actions by individual law enforcement officers or officers of the government over the ~230 year history of the United States. Has any of the Supreme Court decisions ever resulted in a dissolution of the government? No. Why? Because an infringement of the a constitutional right does not delegitimize the existence of the government. The point of a constitutional republic is to be self-perpetuating and self-correcting, not to fall apart like a game of Jenga when you pull on the right piece.

Please, read the whole constitution. It's not very long, you can do it in an hour or so. There's a lot more to it than just the bill of rights.I stand by my original argument that your approach to this is an example of magical thinking, and is actually getting in the way of the change you seek.

> Privilege is not a false concept just because you don't like it.

I didn't say it was a false concept _in general_. For a kid to get an allowance is a privilege. What I should implied (and should have have said explicitly) is: the relationship between people and their government should not be governed by a notion of privilege.

> Whether or not you agree with the policy, you can't just ignore the existence of Supreme Court jurisprudence because the SC is the arbiter of these questions per the Constitution itself.

No, morality is the arbiter of these questions, and the government either acts in line with morality, or it does not. In this particular case, the Constitution has taken the right moral stand, and the rest of the government has ignored the Constitution.

> Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality.

I don't know why you keep talking about this. I explicitly stated that I don't support rebellion. I think we should try to work within the legal framework we have to change things. So we have no practical disagreement. I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_, in the same way that China taking over the US by force would not be legal under the US constitution, and would also therefore be illegitimate.

This is not the same thing as severability. Severability comes into play when part of a law is deemed illegal. In this case, the law (constitution) is illegal, and one of the parties to the law is breaking it.

> Please, read the whole constitution

Your presumption that I haven't read it is ridiculous.

That's literally nonsense. Morality is an abstraction of what constitutes proper behavior. An arbiter is a particular body that judges disputes. In the United States, that judicial power is vested in the Supreme Court, per article III of the Constitution. Your concept of the Constitution as a moral agent, ignored by the rest of the government (including the Supreme Court) is just irrational.

I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_

Would you say that a person who breaks the law is not a legal person, or that a citizen who breaks the law ceases to be citizen? Nobody subscribes to this concept of legitimacy; the Constitution explicitly contemplates the possibility of disputes between the United States and other parties, and the possibility of being a party to a dispute necessarily involves the possibility that the United States will lose such a dispute by being out of step with the Constitution. That doesn't make the entire government illegitimate.

Your presumption that I haven't read it is ridiculous.

If you have read it you have certainly not understood it. Your arguments border upon the delusional.

I'm not saying that to insult you. I'm saying that because you're making these bizarre claims out of the air, whereas I'm citing to the Constitution's own text. Unlike the concept of privilege, there's no mention of 'morality' anywhere in the constitution, and you're using the term in a way that is not consistent with normal English usage.

> That's literally nonsense. Morality is an abstraction of what constitutes proper behavior. An arbiter is a particular body that judges disputes. In the United States, that judicial power is vested in the Supreme Court, per article III of the Constitution. Your concept of the Constitution as a moral agent, ignored by the rest of the government (including the Supreme Court) is just irrational.

In this paragraph, you called my position "nonsense" and "irrational," yet you gave no reason for those claims whatsoever. I agree with the other stuff you said, modulo I'm not sure how you define "moral agent."

The point is, morality DOES exist, irrespective of what any person or government does or says. This is the normal English use of "morality." Government action can either be in line with that, or contradict it. I'm not saying that the Constitution is the source or morality or an arbiter of morality. It's just that the 4th amendment _is_ in accordance with morality, along with the rest of the Constitution, broadly speaking.

> That doesn't make the entire government illegitimate.

So, what's the line? Clearly if the government didn't respect articles I, II, and III of the constitution whatsoever, and just appointed a dictator, it would not be legitimate. On the other hand, if it makes a minor (but illegal) clerical error, it is clearly still legitimate.

_My_ answer to this is that there is no set threshold; it's just a strategic question, a matter of rhetoric. So I don't think there is anything weighing on this topic. What do you think the threshold is?

> If you have read it you have certainly not understood it. Your arguments border upon the delusional.

That's just ridiculous. You keep saying this, but you haven't made a convincing argument that I'm wrong about anything, much less _delusional_, which is an entirely different beast altogether.

I'm not sure if you understand that there is a potential difference between what is right and wrong, and what is actually written into law.

In this paragraph, you called my position "nonsense" and "irrational," yet you gave no reason for those claims whatsoever.

Javert, my reasons are given in the third and fourth sentences, where I define the term 'arbiter' and then observe that the constitution assigns the judicial power of the country to the Supreme Court. You have denied that the SC is the arbiter of constitutional questions on things like rights and privileges. I find your position nonsensical and irrational because it is in conflict with the plain language of the Constitution and with the fact that the Supreme Court has been functioning in this role ever since the its inception.

When you talk about the legitimacy of the government, you're making a legal assertion. You are certainly entitled to your own opinion of what you consider to be moral, but when you make legal assertions on the basis of your personal moral code in complete disregard of how the governance of the US is constitutionally organized, then I view those assertions as fundamentally flawed. DannyBee has cited specific case law elsewhere in the thread that shows the error in your position.

If you are simply going to dismiss anything you disagree with as being morally deficient that's up to you, but your moral opinions are wholly subjective. The objective reality here is what the judicial branch holds to be the meaning of the constitution, regardless of how your or I feel about the morality or quality or their jurisprudence.

I have nothing further to say on this topic, and I think you know perfectly well what I meant in the first place.

I understand your point in the first paragraph, now.

There is legal, and there is moral. The SC is the final, ultimate arbiter of _legality_, not morality.

This isn't a conflict with the Constitution, it's just a "meta-Constitutional" issue.

You act like this is a bizarre notion, but it's actually the common-sense one. First, nobody holds the Constitution as a moral document, only as a legal one. Second, the founding fathers clearly articulated (and demonstrated) that when a government becomes tyrannical, it can and should be overthrown.

Now, putting all that aside, there is a separate issue, which is that the government doesn't follow the 4th amendment. Thus, it is acting both illegally _and_ immorally. Though I see that you would probably say it's legal if the SC rules it OK. I guess it would be "legal" to enslave people, if the SC ruled it to be OK under the constitution? I mean, can the SC just make _anything_ legal by "interpreting" the constitution _however_ it wants to? (Rhetorical question, not asking for a response.)

> your moral opinions are wholly subjective.

No, they're objective, but I don't expect that to sound reasonable to a non-philosopher (or even most philosophers).

> I think you know perfectly well what I meant in the first place.

I resent the implication that I'm just arguing for the sake of argument, which simply isn't the case.

> I have nothing further to say on this topic

I respect your wish to close the conversation, and I feel the same way.

I think you pulled "the government doesn't follow the 4th Amendment" out of the air.

The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment. You can't yell "fire" in a crowded movie theater; you can't stand outside a small-town prison and encourage a mob to lynch one of its inmates. This goes beyond "speech plus action"; there are messages that are unprotected by the First Amendment.†

Now look again at the Fourth Amendment. What does the word "unreasonable" mean? Do you think the Framers just slipped up and wrote one of the most important amendments in the Bill of Rights sloppily? Or do you, like every Supreme Court since the ratification of the Constitution, think that the Fourth Amendment is designed to balance the needs of the state against those of the people, and that's why they put a wildcard like "reasonable" in the text?

TSA searches are lawful under the "Administrative Search" doctrine. Searches can be allowed as "administrative" when they are (a) not targeted to specific classes of people, (b) avoidable --- as in, nobody is coming to your house or stopping your car on the road to search you, and (c) balanced against a legitimate need of the state (in this case, the safety of commercial airliners).

I think the TSA is patently ridiculous and they piss me off just as much as they piss you off. But they are not unconstitutional. The Constitution allows plenty of room for Congress to make dumb decisions, and this was one of them.

† Libel, fighting words, incitement among them.

What constitutes "unreasonable"? IANAL, but presumably, it would be doing something without having a good reason to do it, which is what's happening here. (Looking back, this looks sarcastic, but I didn't mean that sarcastically.)

Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything.

> balance the needs of the state against those of the people

There is no such thing as a "need of the state" that is opposed to "needs of the people." They're one in the same. I'm not claiming this is obvious, but I'm claiming that it's true. (BTW, there are no "needs of the people" apart from "needs of specific, individual people.")

Tangentially, your example of "avoidable" administrative searches actually is self-defeating. Air travel and road travel are completely analogous in every relevant way. So, the laws of the country are inconsistent.

Specifically, if commercial air travel is avoidable ("Hey, just drive from North Carolina to California,") then so is car travel ("Hey, just walk to work every day").

I mean, hell, why don't we just "avoid" going out of the house each morning?

The lawyers SHOULD go, "Hey, we can't stop cars on the roads without a reasonable cause, so we can't stop all air passengers, either." Of course, instead they'll just go, "Hey, now we can use the TSA to screen cars, too!" Talk about the erosion of rights.

The entire definition of "unreasonable" can be distilled to balancing, for any given circumstance, the privacy interests of the searched against the state's interests. Similarly, it's not productive to litigate whether the state properly has interests. This one, based on a couple hundred years jurisprudence, does: the state's interests include law enforcement, national security, and the safety of its citizens.

You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!)

These aren't controversial points and they aren't points I made up.

I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.

Your conception of the Constitution's place in moral arguments is unfounded. The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights.

What the Constitution cares about are the "constitutive" issues: the procedural rights that ensure that all citizens have access to the political process and to the same dispute resolution mechanisms, and that attempt to ensure (as best any constitution can) that the majority cannot impinge on the minority without sharing in the downside of those actions.

As you know, the ultimate arbiter of Constitutional rights is the Supreme Court. The Supreme Court is 9 unelected humans with lifetime tenure. We are not a nation governed by philosopher kings.

The Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions. The framers and every court since Marshall's recognized that the legislative branch was uniquely positioned to represent the largest number of people and equipped with the best fact-finding capabilities. So it falls to Congress to judge the morality and value of the country. SCOTUS is there as a "ref", to make sure the routinely terrible decisions of any collection of West African Plains Apes don't violate the integrity of the Constitution's process --- and that's (mostly) all they do.

Highly recommended: _Democracy and Distrust_, John Hart Ely.

I'm sorry but you are just making sh*t up and while usually it is best just to ignore such posts; this is too important to let stand unopposed. The Declaration of Independence and the US Constitution are firmly founded and derive from natural law. How can you say the Constitution largely avoids moral concerns when slavery and its role was foundational to the document's very existence? If there had been no agreement regarding humans as property in the US Constitution there would have been no republic. Period.

Revisionist nonsense is just revisionist nonsense.

The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.

The concept of judicial review does not even exist in the Constitution nor was it even debated by the founders. It was entirely a power grab in the aftermath of Marbury v Madison. Whether its establishment as a pro forma power was for the better of the country is debatable. The history of the SCOTUS is long and tangled.

SCOTUS has zero power to enforce any of its decisions other than budgetary control of the federal courts. It is a political institution just like any other but with a unique set of tribal rules. It offers its opinions, and if it offers too many contrary to public opinion it becomes irrelevant to political life.

> I'm sorry but you are just making sht up*

Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law.

> The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not.

You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison [0] was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it.

EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's [1] school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school [2].

The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman [3].

> An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.

See above.

NOTES:

[0] http://en.wikipedia.org/wiki/Marbury_v._Madison

[1] Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...."

[2] http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html

[3] http://en.wikipedia.org/wiki/Ex_parte_Merryman

a) "Um, no", but times a thousand!

b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear?

The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense.

As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy.

See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law?

Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs.

The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution.

SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.

The person you're replying to is an actual lawyer.

And not a dog? Thanks for answering a question not addressed to you however.

It was really weighing on my mind.

When you asked, "Have you ever practiced law or been involved in it?", I took that to mean you'd want to know that.

Oh ok. Usually, in the English language, and a great many others, when someone asks a question and then answers it in the very next sentence ("If not, prepare yourself; you are in for a frustrating experience") then that sentence is considered a rhetorical answer.

That is, a question not in need of an answer. Hope that helps you.

> Have you ever practiced law or been involved in it?

As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.)

> The judiciary has no real power other than that of apparent authority.

That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 courses or high-school civics.

> It is an assumed power; an assumption which could just as easily be undone by another accident of history.

True enough, but the system has worked reasonably well for a couple of centuries now, achieving a kind of dynamic stability. (And yes, I'm mindful of those Court decisions that history has rightly come to regard as, how shall I put this, less than successful, such as Dred Scott, Plessy v. Ferguson, and Korematsu.)

You're welcome to try to convince ~150 million voters and their elected representatives that a change in the arrangement is warranted. Good luck with that; in fact, good luck even getting their attention, given that all of those folks do have a few other things on their minds. Past attempts to overhaul the arrangement have never caught on and in fact have been viewed with suspicion, for example as FDR learned the hard way when he tried to pack the Court in the mid-1930s.

Great I'm glad you agree with me on the facts. They are hard to disagree with. You and your friend "Thomas" can discuss the matter on your own on why he fails to do so.

I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly:

What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

Before you answer consider a study of all the acts of Congress struck by SCOTUS from 1953-1997 and the current status of these statutes as summarized by J Mitchell Pickerell [0] Details can be found by following references in the article which any lawyer (regardless of gender) can find.

[0]: http://apps.americanbar.org/publiced/constitutionday/Supreme...

> What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

That's like asking, what is the actual effect of a thunderstorm. The answer is, it depends.

At a minimum, if a government official were to attempt to enforce a law after it had been declared unconstitutional, almost certainly someone would challenge the enforcement attempt in a lower court. (If no one cared, the law wouldn't have ended up in the Supreme Court in the first place.)

The challenge usually will lead to the lower court's issuance of an injunction prohibiting the government official from continuing with his or her attempt to enforce the law. Disobedience of the injunction is punishable as contempt -- as in, the U.S. Marshals will arrest and jail the disobedient official until the contempt is purged. (I don't have time to go into the details of the contempt process.) I can't remember that ever happening, because the Court's power to declare a statute unconstitutional is essentially universally accepted as a practical matter, even though some theorists challenge it from time to time.

Sometimes the Court rules that the unenforceability is retroactive; this can create practical problems, but institutionally the Court is fully aware of that and takes it into account.

Other times the Court will say that the unenforceability is prospective only, that is, existing actions aren't to be disturbed.

Incidentally, the article by Pickerill (not Pickerell) that you cite doesn't support your view. The article lists the various ways in which Congress has deferred to the Court's rulings, that is, acceded to the Court's authority. For example, Congress might amend an unconstitutional statute to fix the constitutionality problems, or it might repeal the statute entirely.

I don't understand the fundamental argument you are trying to make. On the one hand, you appeal to the Constitution as a document of natural law (it very much isn't, but let's stipulate that it is). Then you proceed to argue that judicial review was a usurpation by the Supreme Court, which has zero power and is apparently increasingly irrelevant.

If you think there is a set of core moral values animating the country, but you don't believe the Supreme Court has the power to enforce those values, to whom are you appealing? Clearly not Congress; it's Congress that passed the law that has you yelling at me.

Maybe because I am making no fundamental argument? I have no interest in a dialog. You made several egregious errors. They were pointed out. First that the US Constitution is not a moral document. Second, that SCOTUS is an "ultimate" arbiter.

If you do not believe that the US Constitution and other founding documents were products of Enlightenment thinking and that natural law principles did not inform the debate then we really have nothing more to discuss. You are simply choosing to remain ignorant of the history. I do not care to grant your stipulation. There is nothing to stipulate to. You are just flatly wrong. I'm assuming you are one of those "living" document types and want to talk about what the meaning of the word "is" is. My tank full of patience for that ran out long ago.

Your reply makes no sense. Also your "yelling" comment is rhetorical grandstanding. I have barely raised an eyebrow, let alone my voice.

I also notice you failed completely to address the fundamental point regarding morality and the US Constitution with respect to slavery. Do you believe it was rational thought and not moral judgments that led to the conclusion that slaves were 3/5 citizens for apportionment?

Then, as you say, we have nothing more to discuss, and I'm spared the need to respond to your non-sequitur question.

Non-sequitur? Perhaps the meaning of that phrase eludes you?

You wrote: "The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights."

I replied that slavery is essentially a moral question and is at the very heart of the Constitution. It would not have been ratified without it.

You ignored this statement entirely in your vacuous reply.

Did that help you to see how it follows?

I agree with most of what you said, and I think you are misunderstanding what I said because the context got complicated. So let me recap, in a nutshell.

Someone said that flying is a privilege. I said, no, it's not. He said, yes it is, because that's what the Supreme Court has ruled. I said, no, that's irrelevant: I'm making a philosophical point that would hold in _any_ country. The Constitution/Supreme Court is not the source of morality (including moral issues, such as what a privilege) is; reality is. It's a moral question, not a legal one.

> Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions.

Exactly my point, although you seem to be trying to argue against me here.

Separately, I think the Constitution happens to be morally right with regards to the 4th Amendment, and that the government is not legally acting in accordance with the 4th Amendment.

The issue isn't that flying is a revocable privilege. I agree with you that it isn't. The issue is that any moment, you have the ability to present yourself or not present yourself for a TSA safety screening at an airport. The TSA search is thus discretionary. The TSA is not allowed to seek you out, and they aren't allowed to pick you out of a crowd at the airport while allowing everyone else to go to the gate unmolested.

As a result, TSA searches meet the tests for "administrative searches", just like courthouse searches do.

You & I probably agree that there is a moral imperative to respect people's privacy, and that the state has a moral imperative to minimize searches. My argument certainly isn't that there's no such thing as "morality", nor is it that your moral evaluation of TSA searches is wrong (again, I find them grossly offensive as well). All I'm saying is, the immorality of TSA searches does not make them unconstitutional; the Constitution defers most of morality to the legislature, and has often been an umbrella protecting immoral laws.

Your post sounds reasonably objective only because we've all been indoctrinated to worship in the churches of democracy, the constitution, and common law. You're actually ruling out a whole class of dissent that recognizes USG is simply not working as intended nor producing good results. Of course showing up to the polls and voting for non-incumbent candidates ends up looking like lively dissent when real dissent has been so marginalized.

I can't claim the above will ever be a popular opinion (and your comment is only net negative because it's combative and so blatantly inconsistent with TSA reality), but the technologies that replace our decaying systems of social organization won't be designed by committees either.

And Americans complain about nationalized industries in other countries.

Which is fine, as long as a given _individual_ is consistent.

For example, I complain about non-retaliatory coercion wherever I see it, including nationalized industries in other countries, the TSA, and US government-granted monopolies to telecom companies.

America is an _extremely_ diverse place, and generic online American-bashing just isn't appropriate (despite being quite popular), so please try to avoid it.

I believe that there are governmental-media tendencies that create institutional criticisms rooted in hypocrisy. See also: stereotyping and bigotry, and as an example I would say the US's unified message that nationalizing oil in Venezuela was bad is an example of this kind of bigotry.

I'm also a lifelong Californian, so follow your own advice regarding diversity when condescending that my criticism necessarily depends on regional ignorance or outsiderism.

> No, I am not advocating rebellion, violent or otherwise.

Freedom and rights have never been offered on a platter. You have to fight for them. And you have to keep fighting to maintain them.

I was with him until I watched the actual video, where he basically comes off like a guy deliberately looking for a fight who gets one. He tries to pull the "i don't have to explain why it's a medically necessary liquid, you fuckers should screen it".

All they did was ask why it was medically necessary, which is reasonable, in order to prevent people from abusing the policy.

His citation that the special needs memo says things like "a doctors note" are recommended, not required, doesn't say anything to the contrary. Nowhere in the memo does it say "you will not be asked to explain why it's medically necessary", and in fact, the reason they probably recommend doctors notes/etc, is to avoid having to repeat a verbal explanation 100x over.

Realistically, if he challenges this in court, he's likely to end up making bad law.

People don't like to hear that non-sympathetic plaintiffs and bad actors often cause bad law to be made, but it's reality. Judges aren't automatons, and the law isn't that rigid in most cases (which is yet another thing engineers/etc don't like to hear).

He seems to act like fourth amendment law is not open to interpretation, or that fourth amendment law has not changed over time (in fact, to his detriment, since there are a lot more exceptions related to border searches and searches used to ensure security than their used to be). By doing this he misses the one mildly likely result: He will be the cause of a new exception to the 4th amendment.

'DannyBee, who IIRC is a practicing lawyer, is alluding to a legal truism: "hard cases make bad law". Look it up; the links are interesting. I think about "hard cases" making "bad law" a lot, even in non-legal situations (like the PyCon drama).

Or "three strikes laws" in California...

“All they did was ask why it was medically necessary”

If he had explained all the ins and outs of his illness, then what? Are they in any position to judge the necessity of him drinking sugar water? If not, what's the use of explaining it to them? They should know their own rules and act accordingly. It's unacceptable for them to make someone wait for 20 minutes while they look up what they should already know.

I assume that's why a doctor's note is recommended, so that nobody needs to make assumptions.

TSA contractors have absolutely no right to demand intimate medical information from people who simply wish to travel through the air. The fact that you would think otherwise is a symptom of how unhinged the thinking in this country has become.

They prohibited him from drinking juice. He asked to be allowed to drink it in front of them, and they said no. What in the fuck is anyone from anywhere doing telling anyone they aren't allowed to drink juice?

If you answer "safety" or "the law" or really anything, you are utterly, utterly lost.

This is wrong.

> TSA contractors have absolutely no right to demand intimate medical information from people who simply wish to travel through the air.

They're not doing that. They're demanding a doctor's note (official communication from your doctor to people like employers, school administrators... in other words, not intimate information) only in the case that you need an exemption from the rule that prohibits you from carrying on large amounts of liquid. Should they exempt passengers from rules just for saying "naw, it's cool, it's a medical thing"?

It's not an exemption from the rules when the rules explicitly say that it's cool.

Can you point to where it says that? It actually does not say that they can't ask, and you don't have to prove it. The only thing the rules say is that it's "recommended but not required" that you carry a doctors note.

That doesn't mean "welp, i don't have to prove shit, because i am not required to have a doctors note". It means it's recommended, but not required, that you have one. If you don't, there is nothing in these rules that say you won't have to explain yourself.

"I don't have to explain myself" is a reasonable interpretation of "recommended but not required" unless you actually have a case setting precedent on that particular terminology.

It states very specifically in the memo he refers to:

"It is recommended (not required) that passengers bring along any supporting documentation (ID cards, letter from doctor, etc.) regarding their medical needs."

So yeah, it would likely be easier for him if he did have one, but it's certainly not something the TSA can demand.

They can't demand it, but they also aren't obligated to let him through unless it is evident that he meets the condition for the exemption. If it's not evident that he's eligible, how can it come to pass?

"Don't drink this explosive liquid! Let us throw it in the bin here, 5 yards away from a long line of people, that also contains supposedly over-sized bottles of equally explosive and dangerous liquids"

Let's separate two things: The way I believe the law is right now, and the way i wish the law was right now. You are conflating both. Like most lawyers, I can be dispassionate in my analysis of things, regardless of my personal feelings.

I actually have a very good understanding of what the law says right now. I personally think it's become seriously perverted from its original purpose, but that does not change how the law has developed, it only means we need to fix that.

As it stands right now, the government very likely has the right to demand intimate medical information from people when that intimate medical information is the reason they are citing to avoid legally enacted security rules. Again, i think this is mostly bullshit, and shouldn't be that way, but it doesn't change that it is. The supreme court and others have been very protective of border and transportation searches made for the purpose of security.

Note, btw almost any ADA claim he makes would fail

The ADA does not actually prohibit these inquiries on it's face (it would if they were made for a job related purpose), and aircraft is specifically exempted from most of the ADA's transportation requirements:

"The term "specified public transportation" means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis."

If your hope is to get a court to decide that he won't have to justify it's medically necessary liquid, there is a roughly 10% chance that will happen (maybe less).

If your hope is for a court to decide the TSA needs actual individualized suspicion before fucking groping people, there's an even less percent chance of that happening. In fact, courts have already held exactly the opposite numerous times (due to them being held to be administrative searches)

Your best outcome here is probably that they'll require the TSA offer to ask this stuff in private, and be required to guarantee confidentiality.

At least right now, no court is likely to stop them from doing it.

I'm not sure what video you watched. Here's a guy who, to the extent of his non-lawyer knowledge, stands up for his rights in the face of bureaucratic harassment. He doesn't yell, scream, or cry, he just insists on people following their own rules, not having his possessions taken, and being treated like a citizen whose rights should be respected.

The above comment implies that it is reasonable for TSA contractors to inquire about medical conditions. That is a huge grant of personal information no one should have to make. The above comment also makes the assumption that instead of authority proving it has a need to restrict rights, individuals must prove they deserve freedoms. It is that reversal of attitudes that scares me more than anything.

If you ignore the fact that the guy was trying to board with 2 liters of liquid, when the limit is 100ml, then yes. Imagine he was trying to board with a 2kg pack of sugar instead. Just saying it is 'medical' is not enough, otherwise anything would go through just by saying the magic word.

From the agent's perspective, some guy with a camera showed up with 2L of juice, clearly not allowed, and didn't want to give any further explanation. What should he do?

According to his blog post, there is no limit on volume. I don't know where you're getting this 100ml number.

https://www.google.com/search?q=3.4+oz+in+ml

There is no volume limit for medication. The issue here is that in his case store-bought juice is his 'medicine'.

I'm a type 2 diabetic. The medecine I take affects my blood sugar. The "medecine" that protects me from my medecine is sugar and can be bought anywhere. It's medicinal to me regardless of what any moron TSA agent might think. If my flight is delayed and I can't eat or drink something sugary when I need it, my blood sugar drops and I go into a coma and risk brain damage. Should I depend on the flight attendant to rush me some sugar if I'm about to pass out or should I be allowed to carry it with me? I don't have to rely on sugary drinks in emergencies, I can use sugar pills but his needs are more constant and immediate. I may not agree with this adversarial approach but I sure as hell understand his position.

Are you a doctor? What qualifications do you have to determine that something does not have a valid medical use?

My father travels with a bottle of juice/soda regularly because it is a reliable, known, and fast way of raising his blood sugar when it gets too low, and it is far more palatable than non-liquid methods of doing so. He has never been hassled when it is explained to a TSA agent (and he has a doctor's note too). Just because it's not prescribed or regulated doesn't mean it can't be medically necessary.

Not to mention I have personally traveled with all kinds of things including Costco-sized bottles of contact lens solution and gigantic aerosol cans... it is what it is and with screening I don't see why TSA can't let people through with it.

I think that's totally fine, but unlike your father he doesn't want to explain at all or carry a doctor's note. You can't show up to the gate with a gallon of water and get through security just by saying "it's medical" with no further explanation.

My question is(I honestly don't know) - do you not get shops behind the security screening like any country in the EU does? I don't bring anything to drink with me, but immediately after going through security I go to the nearest duty-free shop in the departure lounge and just buy a bottle of juice or whatever. Problem solved.

The prices are generally higher back there, for what I hope are obvious reasons.

Just FYI, they tested the liquid in question for explosives and of course it turned up negative (as can be seen near the end of the video). Would requiring a doctor's note or more explanation really make any of us safer. I'm sure the terrorists have doctors too. I think the main point here was this was already decided in court and even put into policy and the TSA just disregarded it.

I'm sure terrorists have chemists too, and would defeat that swab test in a week if it was that easy to take large amounts of unknown substances through security.

Not necessary. The TSA already gave a better alternative. FTFV: They can put the liquid in several smaller bottles and then let him through with it: http://www.youtube.com/watch?v=0m12mLXgO1A&t=11m10s

So what you're saying (and I'm trying to ask this without laughing), is that per TSA rules, I can't bring a liter of potentially explosive liquid, but I can bring several smaller containers of potentially explosive liquid, as well as a dry (empty) 1 liter bottle?

I assume they would probably still _attempt_ to limit the amount of total liquid. But the idea that terrorists can bypass a chemical bomb detector but not figure out a way around the amount of liquid limit is laughable.

Why is it laughable? Because it doesn't fit your line of thought? Choosing a substance that doesn't trigger a specific chemical detector, but becomes dangerous when interacting with something else in your carry-on is certainly more feasible than taking large amounts of liquid unnoticed through multiple scanners.

As for the "split into smaller bottles", I think that's a brainfart on the part of the agent, at least around here you're limited to a couple 100ml containers.

So you get 4 people to go through security with you, each one of them brings the necessary components. And I don't know how is it like in the US, but in EU you always get shops on the other side, for duty-free purchases. And yes, they do sell all kinds of liquids - the idea is that they have been screened before entering the airport so they are safe to buy and sell after the screening. So you go and buy a litre of water, go to the bathroom, pour it out, fill it up with the stuff you and your 3 colleagues brought in a few 100ml bottles.

See? All TSA achieved is horse shit. You can still end up on the other side, with a litre bottle of whatever substance you wanted to have,and they couldn't stop you. This is why this entire agency is absolutely useless and more an inconvenience than anything.

The US is the same way actually, and I always sort of figured the easier way in would be to get one of the minimum wage retailers to smuggle something in for me. As they're typically young and low-paid, they 1) need the money, 2) aren't as likely to think about dangerous possible outcomes and 3) (possibly) aren't as likely to worry about it anyway.

Of course, blowing up a plane is sort of a stupid notion anyway. If I wanted a terrorist attack, I'd just bomb a building directly, Oklahoma City style. That wouldn't even need to be a suicide attack. If I was dead set on a suicide attack on an airline, I'd just pick the longest security checkpoint line and blow myself up there.

There are plenty of tactical reasons for commandeering an airplane, but blowing it up is generally not one of them.

I think this is precisely the difference between "security" and "security theater".

> as well as a dry (empty) 1 liter bottle?

Actually, you're not allowed to bring such a bottle as I understand things. I didn't really bother scrutinizing, but the impression I got from a few years back was that even if you emptied out an over-sized container, you still wouldn't be allowed to pass it through.

Now that I think about it, I think this impression is from the fact that you can't bring a half-empty bottle (with only 100ml of liquid or whatever the amount is).

But I could bring a few small containers, pass the security checkpoint, and buy a 1.5 liter Fiji bottle that I could empty in the restroom?

Heh.

Also, I think I recall that there's a restriction on the total amount of liquid you're allowed to bring. I think it was "all of your 3.4 oz bottles have to be able to fit flat inside a X sized ziploc bag" or something like that.

But he's not actually citing their actual rules, he's citing his interpretation of the rules, and claiming various court decisions support him. He's wrong on both points, AFAICT. Now, he may not like that their is more wiggle room than he likes, but ...

As for what is reasonable to inquire about, they can ask about a lot. This is particularly true since it's probably not a custodial interrogation, and they are clearly not asking about evidence of crimes.

You can cite "the way the world should be" all you like. I actually agree it would be a great place to live. But expecting the judicial system to transform it into that world is a dream.

Explaining how he's wrong on both points would be very useful.

Sure

1. The TSA is legally entitled to deference of its interpretations of its own regulations. See Chevron (for statutes. Yes, they get deference to interpret the statutes congress passed that say what they are allowed to do), or Auer (for their interpretations of their own regulations).

It's ridiculous (in the case of Auer deference), but true.

However, at least right now, if the TSA says "our regulations mean X", courts give them deference that their regulations mean X, and it takes a lot to overcome that.

There is at least some hope that Auer deference will die in the next few years. Humorously, one of the justices most people here seem to hate the most, Scalia, is now the strongest opponent of Auer deference:

"For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations."

(and earlier) "The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.

Enough is enough."

(You can also look at his earlier Talk America concurrence on this subject. http://www.volokh.com/2011/06/09/justice-scalia-questions-au... is a good reference about it)

2. Davis, which he tried to quote, says mostly exactly the opposite of what he wants it to:

"airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft."

Note, this seems innocuous at first to an outsider, but administrative searches are not subject to the same requirements as general 4th amendment searches. They only have to be reasonable, not have probable cause. In particular, later it gets you down the path to this: "To judge reasonableness, it is necessary to balance the right to be free of intrusion with “society’s interest in safe air travel.” [US v. Marquez, 410 F.3d 612]). In a fight between "society's interest in safe air travel" vs "justifying why you need a liter of juice", i know who i would bet on. Again, i think such legal rules are wrong-headed, but it doesn't change my view of the current legal state of the world.

But back to US v. Davis:

"[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly." This is a zinger for two reasons:

1. Now, remember, the TSA, because they get deference, mostly gets to decide what is "more intensive or intrusive than necessary", and courts will defer to them, for the most part.

2. As long as they let you out by saying you won't fly, they pretty much get a free pass.

So there you go. Sucks but true.

PS The idea that searches performed by the TSA are automatically administrative, or even that there should be an administrative search exception, was also conjured up out of whole cloth by the courts, so expecting them to suddenly reverse course and apply "the full force" of the 4th amendment (god i wish i didn't have to use that phrase), is well, wrong headed. Barring the supreme court getting a grand urge to stake out a position here (which is rare), if it happens, it will happen when society is less accepting of this kind of thing, not when it is more.

Did you read the link? If you think all of these things "suck", why would you be opposed to

FOIA for essentially all of the TSA's policy & procedures documents

which is what he plans to do? There might be no legal remedy, but certainly a "public opinion" one.

He also doesn't want to pursue anything on the grounds of their procedures or policy, but the ADA / Rehabilitation Act, and this is where all of us need to excuse ourselves into IANAL.

The FOIA request and the threat of lawsuit are very different things. He's using TE former to attempt to bolster his claims for the later (which, if he can get the info, is a good strategy).

Of course I read the link, he FOIA'd, filed ADA complaints, and is threatening a lawsuit.

So, in order:

1. FOIA will get him some documents in about 3-4 years. Maybe. It'll take a while, and he'll get the old copies.

2. The ADA filings will do nothing. the ADA specifically exempts travel by aircraft when it comes to accommodations for forms of public transportation. It also does not say anything about US Government administrative searches. He would actually have to try to find something under the ACA (Air Carrier Access act), and there is nothing there.

Any sane disability lawyer will tell him the above. This is all bluster for a a 1983 lawsuit, however, ....

The 1983 lawsuit is probably a non-starter on the 4th amendment side. You'd have to show the TSA's actions are contrary to clearly established federal law. At least on the facts seen so far, they aren't, and courts have generally agreed to this. If they had arrested him, maybe he'd have a 1st amendment claim like Tobey does (so far) in Tobey v. Jones. But again, even sympathetic courts so far have thrown out most 1983 actions for 4th amendment violations against the TSA.

3. I am a lawyer, actually, so I don't need to excuse myself. I've actually even got a ADA recognized disability and have actually fought fights under the ADA.

(though, in the interest of full disclosure, my normal day job now is IP law, i have dealt with plenty of constitutional law :P)

In any case, i'm opposed for the reasons I stated in the first reply: He is, IMHO, unlikely to accomplish anything except making bad law through the above. Even his video is causing divided public opinion in this very thread. If you want to have a chance of doing something right now, you need the old disabled war vet who is being strip searched because blah blah blah.

It's certainly his right to pursue what he wants, but I personally don't see it as helpful to the cause.

Thank you for this comment, and for taking the time to spell this stuff out.

AFAICT, you just made a case that "an administrative search" is legally allowed, not that they're allowed to confiscate his stuff or prevent him from flying with it. Does their right to "search" - examine his stuff - also imply their right to just take whatever they want? If so, how does that work?

They can definitely prevent him from flying with it. In most cases, the violation would have to be the seizure itself, not the "preventing him from flying with it" part. Flying with it implicates not just TSA regs, but FAA/etc. You'd basically have to find that congress has not granted them the authority to decide who can fly with what, or that congress does not have that authority. Neither seem like a good argument (unless you believe congress has no right to regulate air travel at all, in which case they all seem like good arguments :P). At least in this part, TSA is just doing what it's been explicitly allowed (and in some cases, ordered to by congress. See, for example public law 107-71, the act that created the TSA, where you can see they actually require the TSA to do certain things to passengers)

So let's talk about the confiscation: In general, during administrative functions like this, agencies are granted wide latitude, and can in fact, take stuff away for many hours with no issue. Again, remember these searches and seizures only have to be reasonable, they don't have to have probable cause.

Before the recent border search case, it was even weeks or months that they could hold stuff.

As for permanent confiscation, probably not, but they could say "junk this or don't fly"

At the risk of philosophy there is a difference between expectation in terms of a demand, and expectation in terms of an assumption. There is no naiveté in understanding the common outcome and seeking an alternative one.

I learned a lesson recently about having faith that the status quo can be changed from the tactics of the GLBT community. I had assumed that the only way to create real change would be to force change through radical action, but they expected people to act like rational caring individuals if they just went door to door, introduced themselves, and explained their way of life. This has been (to me) shockingly successful. It seemed naive, an absurd assumption that people would listen and act rationally, but to a staggering extent it has worked.

Perhaps you think our legal system is too far gone to be given the same faith, and held to similar expectations of decency, but I would disagree.

Except in very rare cases, the legal system follows society, it doesn't lead it.

This is why you see Justice Kennedy worried about ruling on gay marriage. It is obvious to everyone in that room that in 50 years they will likely be viewed as bigoted fossils if they rule against gay marriage (to quote the oatmeal). They aren't idiots. That doesn't mean they are going to jump up and scream that it should happen, because it's not their role in our system. That's congress and the states.

They aren't going to be the folks who start the revolution, they are going to be the guys who say the revolution was right.

As you've discovered, change of society does not always require radical action. But change of the legal system almost always requires change of society.

When it happens the other way around, society still gets the last say. See, for example, the forced relocation of native americans, despite the supreme court ruling it unconstitutional.

Its illegal for the TSA to inquire about or require proof of a disability.

Picking a model plaintiff for litigation of this type is very important. Just look at how the plaintiffs in what became DC v. Heller (the case that established the 2nd Amendment as an individual rather than a collective right) were selected:

https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...

The "rules" about liquid are silly. The TSA plays the ball rather than the man, going after 3 ounce bottles rather than people with a history of terrorist sympathy.

Actually its illegal to request a passenger to identify his or her disability to a TSA security checkpoint or require proof of the disability.

I think you watched something else. I would have exploded like 10 times in that time, and he remained perfectly calm. And no, if it's not required by law, he should not be asked questions about his medical conditions or requirements. Period. If they want to be able to ask these questions,they should include such a policy. An agency that interprets their own rules however it sees fit is a recipe for disaster.

I have a prosthetic leg and travel weekly. Apparently, the TSA's official policy is (or at least was) that, if asked my me if I am allowed to remove my leg and place it on the x-ray conveyor belt, they are to tell me doing so is forbidden. However, if I simply do so, they are not to stop me. I presume the theory to be that travelers might somehow mis-understand and create a PR disaster by claiming that an amputee was forced to remove his leg.

If I leave my leg on and walk through the metal detector, I must wait around until a male agent is available to swab me, check for explosive residue, and determine that I am not carrying a weapon. It's much more efficient to take the leg off and waddle on my knees through the metal detector.

Most of the TSA agents know me at this point, but occasionally a new person will be caught off guard. Usually, they are speechless in fear of breaking two seemingly conflicting rules: (1) don't offend, humiliate, etc. and (2) don't allow passengers to do stuff they aren't supposed to do. I see some panicked motioning to a supervisor and hear, "Oh, he comes through here all the time! ...Yes, it's allowed." Occasionally, a new agent will tell me, "You can't do that, sir!" When I reply that I've done so well over a hundred times in the past couple years, they defer to a supervisor who informs them of my "rights." [Quotes to convey the absurdity of the situation, of course.]

It is because of my experiences in hearing TSA agents make-up a rule out of thin air that I do not doubt the author of the blog posting. Interestingly, I suspect that my notoriety actually has lead to less scrutiny over time -- the frequency at which my carry-ons are hand inspected has decreased over time.

"Apparently, the TSA's official policy is (or at least was) that, if asked my me if I am allowed to remove my leg and place it on the x-ray conveyor belt, they are to tell me doing so is forbidden. However, if I simply do so, they are not to stop me. I presume the theory to be that travelers might somehow mis-understand and create a PR disaster by claiming that an amputee was forced to remove his leg."

Wow, I was reading a few books on USSR lately and this is exactly how the soviet low enforcement functioned. It's very hard for servicemen to find balance between common sense and social traditions on one side and the madness of totalitarian authority.

We complain about the TSA on here all the time, but it's important to remember that the average American sees absolutely nothing wrong with what the TSA does. They genuinely and wholeheartedly believe that the TSA is helping to make the skies safer for Americans, and that it is doing so without violating any civil liberties. The idea that "if you have nothing to hide, why do you care if the authorities search you?" is a widely held belief.

If we are to dismantle the TSA from its core (rather than just poke holes in it every now and then for specific grievances), public education is the first step, not litigation.

Do you have some evidence for this assertion? I see it commonly given here -- treated almost axiomatically -- but is there any actual evidence that 'the average American sees absolutely nothing wrong'? Or are we just assuming we know the mind of 'average' American... and that we are not they... and that they are simple, and complacent?

Public education would lead to... what... mass civil disobedience against the TSA's practices? Maybe, I don't know. Fighting the TSA's de facto policies with legal battles is an appropriate response (that doesn't at all require majority public attention).

I think this poll is representative of many that have touched on the issue:

http://www.gallup.com/poll/156491/americans-views-tsa-positi...

Thanks, that's a fair reference. Still, they weren't measuring whether most people see _absolutely nothing wrong_. That's a fair piece further. Boycotting, protesting, or requesting disclosures under FOIA take a lot of effort and risk. The threshold of quiet discomfort before action is pretty high on this one.

Even armed with statistics or a report from a "legitmate" (paid) research firm, in the end you can always find something credible looking to back up what you say or believe. Often being confronted with proof to the contrary makes a believer even more convinced of their belief.

The real problem here is the difference between what people think, what people say and what people do. Everyone hates the screening process, and even the most law-and-order "nothing to fear if you have nothing to hide" Ward Cleaver type is going to see patronizing, questionable and occasionally abusive behaviour.

It can be scary to confront the idea that the government might not have your best interests at heart, and scared people are not likely to speak up unless something is happening to them.

People are herded like animals through the screening process. The entire scenario is designed to scare people into complacency and obedience. Herds are not known for thinking rationally.

In the end, there's no obvious way to get enough people in a herd to speak up. That means that people who do get frustrated and push back look like trouble makers, they are made to look like the suspicious ones. Anyone who might want to help is fighting against the fear that they too will be singled out.

It's a vicious circle experienced by anyone that flies frequently. Asking for "evidence" that people aren't upset is missing the point.

You're absolutely right about herd mentality and the overall process that isolates trouble-makers. But I wasn't asking for proof that people aren't upset. I'm questioning the idea that a majority of fliers see _nothing_ wrong with this process.

I found it interesting to read the comments on the blog post where the TSA announced they would stop confiscating pocketknives (effective April 25): http://blog.tsa.gov/2013/03/small-pocket-knives-more-support...

Instead of celebrating this as a victory for common sense, many commenters argued against the change, claiming it would make flights less safe (or at least feel less safe). I think these people are representative of a significant fraction of the population who think the TSA's work is both necessary and effective, and would oppose limiting it any further.

My girlfriend is a flight attendant. She, and many of her co-workers, are very upset about the new pocketknife policies. Mainly, the issue is this: She's still not allowed to carry one. Company policy: She could lose her job upon uniform inspection. Total craziness if you ask me. Honestly, I wouldn't care if they sold knives for $2 like headphones. I just wish that they would provide her with some training in martial arts with a focus on weapon disarming.

Two pronged approach is in order. Litigation _and_ education.

Won't do any good - the TSA is here to stay, short of the government ceasing to be.

But it's a good fight, and might delay the inevitable for a while.

I've never met anyone who thought the TSA was anything other than irritating and pointless.

This "appeal to the average" is getting old. I wager you would be surprised what the "average american" takes an interest in.

Americans (and I am painting with a very wide brush here) I find are very authoritarian. For all the propaganda about freedom, independence, personal rights and property, they are very willing to support authority, very obedient, and most of all would not lift a finger to protect or step up if they see authority overstepping its bounds.

As a bit of a background, I grew in a former communist dictatorship so I am familiar a bit with oppression, keeping your mouth shut, not saying the wrong thing and listening to authority. That is why I have a smell test and a perspective to compare between.

Anyone think I am off the mark completely? Obviously in this forum most people aren't but am I completely off the mark in respect to the average Joe Sixpack? What is the reason for that? Kids do learn in schools about fighting for independence from England, about Founding Fathers, etc etc. so where does blind submission to authority come from?

I think it's vaguely true in an absolute sense, but I haven't lived anywhere else where people are less submissive to authority, except in countries which have obviously corrupt governments. It seems like a general feature of first-world countries. I live in Denmark now, and if anything people defer to the authorities here even more than in the US.

I have some friends in Greece who don't trust the authorities, but it had to get to a pretty bad state there for that to happen (e.g., infiltration of the police by far-right organizations).

I can understand that in some Nordic countries where there is a little more civic involvement and participation in government all around. They have a multi-party system and the population trusts the government a lot more - not because they are sheep, but because the government is highly transparent and cooperation between parties is encouraged. People feel well-represented there and in Sweden, from my observations.

I think it's deeply ingrained in our culture, and especially so in parenting and schooling. The model of schooling we have is based primarily on conditioning people from an early age to accept answers, wisdom, and decisions from an authority figure (externalizing the responsibility for thinking). It is pervasive in the typical classroom, where very strong emphasis is placed on having "the right answer" as opposed to having an effective thinking process. Little attempt is made to engage the students in dialogue, and they are expected to memorize and repeat whatever the teacher delivers. As a result, they do not develop a habit or ability in critical thinking, and do not question things that might need to be questioned. In my opinion, that is one of the greatest causes of the phenomenon of submissiveness in developed nations (this model of schooling is pretty much universal I believe).

There have been some very interesting developments counter to this in recent years, and I hope that they gain some traction. There's a program in the UK called Cognitive Acceleration [1] that seems to have a lot of promise for developing more of a habit of independent thinking. There's also some interesting stuff coming out of Harvard called Visible Thinking [2] that I believe is very beneficial.

Unfortunately, I think it will be quite a while before that kind of thing is widely adopted because of sheer momentum and the apparent drive toward ever more standardized testing.

I'm sure there are dozens of other factors that contribute to what you're talking about, but schooling is one that I recognized as having a huge impact on my own life in terms of my perception of my position relative to authority.

[1] http://www.teachingexpertise.com/articles/cognitive-accelera...

[2] http://www.old-pz.gse.harvard.edu/vt/VisibleThinking_html_fi...

You're absolutely on the mark. I can't tell you how often I hear something to the tune of, "Just do what your told" or "They're just trying to help people." I cringe every time I hear it.

I think we can go wider: the americans are only humans. We can all have these tendencies.

I am comparing here vis-a-vis the propaganda image (that is widely believed). So yes, they are humans. However resistance to abusive authority, resistance to invasion of privacy, freedom of speech, all those are touted as core first principles of America. I was pointing out that there seems (to me) to be a disconnect from that image to every day abuses of authority and how average Americans react to being patted down, monitored, questioned, searched, told to do things "do this because I told you", "show me your papers, this is a 100 mile border zone, you have to stop and get frisked" etc etc.

I can almost hear the hypothetical lesson in an American school teaching about how abusive authoritarian countries are conducting these things and everyone nods and approves as in "of course, make sense they do that, in contrast to us..."

One thing that influences my own thinking on this topic was having read "Conservatives without conscience" by John Dean several years ago. It's a bit political so maybe the HN crowd won't appreciate it. But one of its ideas is that a certain percentage of Americans have authoritarian personalities as described by social scientists - see http://en.wikipedia.org/wiki/Authoritarian_personality . This made sense to me in the context of the Bush years and I've continually seen situations that remind me of it, in all sorts of contexts, including, say, to explain why some people in this HN thread seem so eager to defy what I see as simple common sense and defend these TSA types, ahead of putting themselves in the shoes of the disabled guy.

Every day in elementary school, we were required to state, "I pledge allegiance to the Flag of the United States of America, and to the republic for which it stands". From the age of 5, they make it very clear that you are to have an undying allegiance to the government.

It's also a very religious country.

Yeah I think the puritanical background is significant. Blindly accepting tenants as if they came from the sky directly without questioning them is a strong element.

Complaining about the awful stuff they do is part of that public education mission.

Oh I am quite sure the average American DOES see something wrong with the TSA, however they are resigned to grousing about it as individually they cannot see anything they can do but accept it.

It would take a new political group to arise and challenge those in power, which isn't going to happen anytime soon. The Tea Party got branded by its kooks because both Republicans and Democrats saw the threat is posed to them. Republicans because it directly challenged them and Democrats who desperately didn't want the same to come up and challenge them from within.

So I think Americans care, but are resigned to the fact that short of a major upheaval or serious blunder by the TSA not much will change.

"the average American sees absolutely nothing wrong with what the TSA does"

I keep seeing variants of this claim, but that's not my experience. Everyone I know hates it (and I'm pretty sure that some of those people are "average Americans").

Yes! I commented a few weeks ago about listening to an NPR ToTN segment about the loosening of the pocketknife ban. ToTN even got a guest for the duration of the segment to argue the case for relaxing TSA regulations. As I recall: every caller called to complain that the TSA was relaxing requirements.

Similarly, many commenters on the TSA's blog post announcing this change opposed it: http://blog.tsa.gov/2013/03/small-pocket-knives-more-support...

I have a speech impediment. Sometimes, especially when I am tired or upset I can't talk to save my life. I have in the past written note cards to hand out and I carry a notepad and a pen with me. I had not idea they would refuse someone to use them. Well, I guess I should say I am not surprised. To be politically incorrect (insensitive) a good number of TSA employees don't seem to be very bright.

I hope your case is successful. Over the years TSA has caused nothing but pain, waste, and abuse without catching a single terrorist red-handed with a bomb.

Of course not; if they trained TSA agents beyond having a simple state machine there wouldn't be so much money left to buy Rapiscan machines. I highly doubt being assholes is due to anything but poor training and their salaries are probably too low for them to really want to put any effort into anything. I'd remove the machines and give them higher wages and better training if I had any say in the matter.

According to a former TSA screener: “Did you know you don’t need a high-school diploma or GED to work as a security screener? [...]
[Most screeners] are only there for the paycheck and generous benefits. Screeners start at $15 per hour, and there is tons of overtime — mainly because they are filling in for the many screeners who don’t bother coming to work. For every 40 hours you work, you receive four hours of vacation and four hours of sick time.
One screener didn’t come to work for four weeks. When he finally reappeared, he asked for another week off. The answer was no. So what did this brainiac decide to do? He took another week off — and didn’t get terminated. People have been caught falling asleep on the job. They get written up, it’s put in their file, and that’s it.

New hires see how bad it is working there, and, believe it or not, TSA does manage to hire some pretty decent people. They just don’t last because they can get a normal job. It’s the people who’ve been there a good number of years who could never find employment elsewhere. When you have a real job, it usually means you have to actually work and think, which a lot of them have a hard time doing.”

http://www.nypost.com/p/news/local/confessions_of_tsa_agent_...

+1 for the state machine reference - funny and hackerish.

“To be politically incorrect (insensitive) a good number of TSA employees don't seem to be very bright.”

In the words of a former TSA agent: “Did you know you don’t need a high-school diploma or GED to work as a security screener? These are the same screeners that TSA chief John Pistole and Homeland Security Secretary Janet Napolitano refer to as a first-class first line of defense in the war on terror. These are the employees who could never keep a job in the private sector. I wouldn’t trust them to walk my dog. [...]

Most TSA screeners know their job is a complete joke. Their goal is to use this as a stepping stone to another government agency. We work in a culture where common sense has no place. All but a very few TSA personnel know they’re employed by a bottom-of-the-barrel agency. [...]

It’s the people who’ve been there a good number of years who could never find employment elsewhere. When you have a real job, it usually means you have to actually work and think, which a lot of them have a hard time doing.”

http://www.nypost.com/p/news/local/confessions_of_tsa_agent_...

I've been flying since the 1960s, and internationally since the early 1980s. I've written about this general issue (crazy TSA rules that don't appear actually to make any of us safer) for years now on Hacker News.

https://news.ycombinator.com/item?id=5216204

Here's the tl;dr version: It would be better to go back to the "old days" when we could bring all kinds of unlikely things with us onto airliners. The best way to keep the public safe is not to inconvenience air travelers but to relentlessly pursue and kill leaders of terrorist networks who try to make flying dangerous and frightening rather than safe and routine. Exercise your rights by not letting terrorists change your lifestyle, and ask your elected officials to ease up on needless inconvenience for air travelers. (Please don't complain if this is brief and doesn't cover all the details; I linked to the long version.)

Best wishes to all of you for safe and dignified travel by the means of your choice.

I get the guy was standing up for his rights and all, and I am all for human rights (especially those with disabilities) but you have to admit the guy was baiting them quite a bit. I felt as though he was intentionally trying to take it as far as possible. The guy was trying to take a 2 liter bottle onto the plane, I understand he needed it, but where was he going that required a 2 liter bottle of Aloe Vera juice? If it's the sugar, could he not have sufficed with sugar mixed with water or perhaps some kind of confectionery on the plane to tie him over?

Taking a 2 liter bottle onto the plane of store bought juice is silly no matter which way you look at it. If it were a prescribed liquid, they would have let him on no questions asked. But as far as the TSA or "their representatives" know, he's just some guy with a bottle of juice and camera. I know someone suffering as equally medically and they don't try and carry 2 liter bottles of juice onto planes, they always have backup sugar pills for when they need them and if he was nice and made his needs known to flight staff, they would have been more than accommodating to his needs on the plane opposed to risking a potential PR storm if there were to be an in-air medical emergency.

You can also buy all the juice bottles you want in the gating area.

What's wrong with testing the bottle, then letting him have it?

<i>If it were a prescribed liquid, they would have let him on no questions asked.</i>

This is incompatible with juice just being silly - unless they test both the prescribed liquid and the juice for absence of explosives, they have no way of knowing that the liquid in a prescription bottle is in fact a prescribed liquid.

Do you think terrorists just wouldn't think of labeling their mythical liquid explosives? Or do you implicitly believe that defying authority is what is "silly"?

Wow. Was thinking Sai had a logical complaint until I watched the video of him interacting with the TSA (or whatever company does security in SFO).

It's clear by the video, he was trying to troll TSA rather than get through security with his medical liquids.

He can't expect to not justify and explain why his liquids are considered medical. Otherwise, every person who paid $4.50 for a soda before security would just pull the "It's medical! You can't ask questions card"

I think the issue is just that the TSA policy is not "good enough"

And that's exactly how people see americans, by the way. Some random dudes try to piss of a bunch of people, and maybe make some money in court, because a document, law, whatever didn't specify something that was common sense.

Then you end up with ridiculously long documents that attempt to cover every single tiny case - and of course, generally taking the road "against" the consumer, customer, whatever - because it's _safer_.

So yeah. By watching the video, the guy does appear as a douche. He should just ask TSA to make their papers clearer about the policy. He could also split his liquids into smaller liquids or just bring the doctor note. But nooope.. let's piss off TSA to "make a point". Except, it's not a very good point.

For the record I travel through the US every now and then, and I bring sensitive items, that always get scanned, but always go through. I sometimes even get this little "TSA inspected this bag" from checked-in luggage due to the contents.

Never had any issue. But such behavior, I fear, actually work toward restricting all items I travel with, and thus, effectively forbidding me travel with those in the future.

> He could also split his liquids into smaller liquids

This isn't actually true, and you'd see that if you watched the video all the way through. Part of the treatment is the weight of the liquid container.

> He can't expect to not justify and explain why his liquids are considered medical. Otherwise, every person who paid $4.50 for a soda before security would just pull the "It's medical! You can't ask questions card"

Yes, he absolutely can. The TSA has absolutely zero right to interrogate him about any medical conditions he may have. Medical information is extremely private and none of the TSA's business.

> Otherwise, every person who paid $4.50 for a soda before security would just pull the "It's medical! You can't ask questions card"

It actually can be. My father has a doctor's note effectively saying that he's using soda/juice for medical reasons, just so TSA can leave him alone. He's almost never been asked for that note too, most of the time TSA doesn't give a crap as long as the liquid gets tested and is "safe". I really don't understand why he has to explain this to TSA at all cause it's none of their fucking business, but that's how things work (and by god I wish they'd change).

FWIW the only reason the note exists at all is because a bottle of juice or soda that my dad likes is far cheaper than the legally prescribed "medical use" labeled juice that you can get, and works just as well.

I really don't like most of the TSA's procedures either, but watching the hidden camera video, it seems like the OP went in to the situation expecting to have an issue with the TSA. If you approach the TSA adversarially, it's logical that they'd respond unpleasantly.

OP: In a patronizing tone: "You're required to accept it, and to screen it. You have the means available to screen it, namely xray and explosive trace detection"

TSA: "Sir, where are you going?"

OP: "That's none of your business"

Yeah, It's clear he was looking for an argument.

He does expect to have a problem, and he documented it.

It's not a hidden camera. He tells them he's recording.

It's not okay to mischaracterize the situation.

Ah, ok. I missed the part about the camera not being hidden.

“If you approach the TSA adversarially, it's logical that they'd respond unpleasantly.”

Why? Aren't they trained to deal with all kinds of people and types of behavior, like anyone in a customer facing profession? If I go to an Apple Store to buy a product while I'm in a bad mood and don't feel up for chit-chat, the sales rep isn't going to make me play nice.

Also, I think Sai was very courteous and patient, given the situation. He obviously knew that if he had actually raised his voice or made a scene, he'd be giving them an excuse not to cooperate. Nonetheless, in the video one of the TSA agents told him to calm down while he was clearly quite calm. That's the kind of shenanigans we see again and again from the TSA.

If a cop stops you on the street because he thinks you look suspicious, how do you respond?

1) "It's none of your business. I'm going to start recording you to make sure you handle this situation legally"

2) "I'm just rolling a cigarette. Don't worry it's not weed!"

Although most people don't like answering to authority, especially when they aren't required to, option #2 is the path of least resistance. That said, I do respect people like the OP who take the first approach and challenge authority.

Option 3: don't talk to cops. Ask if you're being detained – if the answer is 'no': leave. These people are not your friends.

> If a cop stops you on the street because he thinks you look suspicious, how do you respond?

This depends entirely on how much faith I have in the cop's capacity to operate within his legal boundaries.

Here's a slightly different example that's still hopefully in the spirit of yours.

You're walking in a busy area and a pair of cops stops you and asks you to show your ID and the contents of your bag.

1) Show the ID (which you're required to in this country, if you're a non-citizen), but not the contents of your bag. 1a) Optionally, ask the policemen's ID and write down their names.

2) Show both the ID and the contents of your bag.

This happened to me a while ago, in Tokyo. Apparently most people do #2. The cops were very surprised that I chose option #1a. It took 15 minutes for them to give up. Apparently most people either don't know that cops cannot search you without probable cause, or they know but don't care. I don't think you need to be particularly courageous to say "no" to a cop, when it's your right to do so and you live in a place where the law is upheld.

Incidentally, I would never antagonize a TSA person or an US immigrant officer like that, as I have no idea of what laws (if any) would protect me, as a non-citizen.

Except that it really IS none of their business, and we're collectively better off if the TSA periodically gets TOLD that when they ask nosy stupid random questions.

So if you don't want to have your rights violated you have to be nice to the authorities? That's absurd.

To those thinking that he's just causing a fuss for no reason. The same could be said of Rosa Parks. We need people like him to move our rights forward.

On March 1, 2013, San Francisco TSA

FYI, "Covenant Aviation Security, a private company under contract with the Transportation Security Administration (TSA), provides passenger and baggage screening at SFO." Per http://www.flysfo.com/web/page/atsfo/saf-sec/

Yes. This is true. At least on March 1st, 2013, San Francisco Airport utilized Covenant Aviation Security, a private company under contract with the Transportation Security Administration (TSA).

Source: http://www.flysfo.com/web/page/atsfo/saf-sec/

True, but you can't pin it entirely on Covenant -- If you watch the video, the Covenant representative who staffs the security checkpoint bring in the TSA agent for the airport to the checkpoint. The Covenant representative basically denies any authority to interpret the rules or make a decision other than to get the TSA agent. The TSA agent appears no better.

I don't think you get to shirk responsibility just because you contract the job out. Even if TSA contracts out security at this airport, the contractor is still operating under TSA rules and TSA is ultimately responsible for their behavior.

Lots of good points. But he does state his disability in public on the web, no problem, while also complaining that he doesn't want to be outed at airports. I'm unclear on why being outed at airports is so bad if telling the whole world is ok. If he addressed this apparent contradiction I'd sympathize even more.

Context is important.

Speech by choice is very different than being unlawfully questioned and to have your possessions, medical liquid or otherwise, held hostage contingent on your reply.

I think it's safe to say juice is traditionally not considered a medical liquid. In that situation, he is asking for an exception. It is his requirement to justify the request that his juice should be considered a medial liquid. It's unreasonable to say that he shouldn't have to justify its reclassification as a medical liquid without a few facts and disclosing a few details of his situation. Otherwise, every person would claim their soda/juice is a medical liquid and say they don't have answer questions because it is a medical thing.

I might agree, if juice were a regulated substance, and if people were required to walk around with documentation about their medical issues.

As far as reasonability - he's correct in noting that the TSA is not entitled to your medical history. Moreover, TSA screeners are generally not doctors (some may be), they're not YOUR doctor, and they're certainly not in a position to decide what is or isn't medically necessary for you.

Does this mean that you should be able to get your juice past security by claiming to have a medical condition? No.

It means you should be able to do that without having to disclose anything about your health, and the only remedy that should be available is for the TSA to screen the liquid if they feel it is necessary to ensure passenger safety.

Is that unfair? Maybe, but so is a ridiculous ban on a liter bottle of safe substances.

I think he means he doesn't want to be ostracized at airports. Just because you are out about something doesn't mean you should have to declare it at the airport and make a scene. Plenty of gay people are out but they don't have to be questioned about it at the airport.

Different contexts are different. While at an airport, few are likely to connect his face with his website and have it known that he has a disability. Even if he's talked about it on his site, that doesn't mean it's automatically known to every person everywhere, humanity is not a hivemind.

Furthermore, he's attempting to advocate for others who may also not want their disability known. He gives up his privacy in a certain setting in order to (hopefully) allow many others to never have to give up theirs.

Shame? Having to get patted down and trying to explain your disability and why you need exceptions in a place where TSA acts like God? It's entirely different. It's as different as choosing to come out or being outed. I sympathize with people with disabilities, they know that people are sympathetic and it's very awkward to have to make excuses for yourself for a disability you have no control over.

On the other hand, in your own forum while making a point, it makes perfect sense to use that context to explain why it was embarrassing and is in need of proper training or policy modification.

You fail to address the fact that it is him choosing to disclose it. That is very different from being forced to.

The serious problem I see here is that even after he indicated he is not able to talk to them they refused him to use pen and paper. I also have a speech impediment and carry those with me. Taking them away and not letting someone use them when they are already frazzled and upset is like asking someone in the wheelchair to just "stop being a pussy and get up and walk" or accusing them of "being uncooperative".

I think he's fighting this on principle, and doesn't want others to have to out themselves either.

What I wouldn't do for some of the folks that have accumulated wealth via tech exits to get together and create a pool of $20-50M to start an organization that will both lobby to dismantle the TSA and provide education and defence for those who are bullied in the meantime.

Look at the good that the EFF and Creative Commons have done. It's time for people to reclaim their freedom of movement.

FWIW, I'm Canadian and I would sign up for a regular donation if such an organization existed. That's how frustrated I am by the global chill that the TSA/DHS has created, all without a single documented terrorist caught.

The problem is not with the TSA per se but with the representative democracy. Every elected official that has a choice to repel some stupid rule or law is present with the following game-theoretic matrix:

repel then some incident happens that can be somehow associated with this - it's a catastrophe even if the association is completely superficial, the media will manage to spin it to cause enough damage.

repel then nothing happens - there is a minor positive outcome but incumbents already have an overwhelming advantage.

don't repel - there is a minor negative outcome but incumbents already have an overwhelming advantage.

Until incumbents start routinely losing elections repelling any "safety" regulation is the worst move you could make. There is very minor upside and a huge downside. So we will have to keep our kindles showing the splash screen while the plane is waiting at the gate and throw out toothpaste at the TSA checkpoints. Any possible relief will come either from the money pressure (e.g. confiscation of lighters apparently had been interfering with the airports operation so much that it had to be repelled) or political stunts (e.g. Obama showing the terrors of sequester by allowing pen knives and hokey sticks on-board).

This is appalling, and not only from a medical or legal standpoint. I fly a lot, mostly internationally, and this isn't a problem with just the TSA (I'm not a US citizen). Airports around the world have to be the least humane places I've ever encountered. Anybody who knows me would say I'm not one for stirring up trouble for the sake of it, but having people power-tripping on the little uneducated authority they have has to be the most vile experience ever.

I could probably write an essay on the number of moral abuses I've seen in airports, from the typical inappropriate "you need to calm down" to seeing people in clear medical or mental distress (gladly few, but some of these experiences being mine).

We would never expect this sort of behavior anywhere else in society, yet we're letting this go on as if it were normal. I personally wonder how this is even legal, but I suppose that's beyond the point. This may be an overused quote, but "those who sacrifice freedom for security deserve neither" rings very true in this instance.

How is oppressing the vast majority of flyers any better than the terrorism we are supposedly preventing? I would even go as far as saying that this sort of behavior is most likely what encourages terrorism in the first place, but I digress.

Airports are one of those far-too-regular cases where "you're guilty until proven innocent" has become the norm. Anybody in their right minds know full well that if somebody really wants to make anything happen on a plane, it will. It's clear that restrictions against foods, liquids and whatever else are more about perceived security than actual security (also very possibly about purchases...).

I truly understand the reason (beyond medical) the OP was driven to shoot that video. People saying he was picking a fight may or may not be right. Similarly, his legal reasoning may or may not be biased. But that's not the point, the law is there to protect freedom, not obstruct it.

He was clearly looking for a fight, but I wish everybody would do what he has done. This security theater wouldn't be feasible if everybody took a stand.

I just hope he is correct in his legal interpretations.

This is disturbing. I'm in awe at the TSAs complete failure here.

Would be interesting to see if a parallel private system could work. The state could maintain standard to which the private network should adhere, i.e. min basic security, etc. In other words break down the monopoly of travel from the state, you know, like in a free society? I generalize on air travel this because all other forms of travel aren't really adequate in a country as big as ours.

That was actually tried for a little while. Airports could opt-out of the TSA but still had to meet the screening guidelines. For example if you fly out of SFO you are going to be screened by not the TSA. As of 2011 however the TSA stopped allowing new airports to opt-out ( http://www.nbcnews.com/id/41391509/ ).

I was actually thinking of a parallel airport system. A monopoly outsourcing screening activities to a private company doesn't provide more alternative to the consumer.

Airports generally are privately operated, but it's not about that. Air travel is federally regulated, so the situation isn't even addressable on the ground. For instance, you can't build your own runway, pile 50 people onto a plane, and be free and clear of FAA and DHS.

Howdy all. I'll respond in summary to some of the comments in the thread so far.

First off I want to stress: I complied 100% with TSA policy. They did not. Yes, I politely but firmly insisted on my right to privacy. That doesn't mean I have any less right to travel with medical liquids.

But… I might as well answer some of the specific issues brought up, so here goes. My apologies if I've missed something, and I'm not going to full case citations etc here in comments (sorry).

I'll try to come back later to try another summary comment, but I have to sleep (and go househunting tomorrow), so I won't be able to do point-by-point responses on everything.

1. 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 me 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.

2. 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 "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 it, 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.

3. Liquid limits

I don't think I can do anything but quote the TSA's own policy here:

"Medically necessary liquids are allowed through a checkpoint in any amount once they have been screened." http://www.tsa.gov/traveler-information/medically-necessary-...

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.

4. Is juice medical for me?

Frankly, that's none of your business. 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.

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.

5. 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 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.

6. Covenant

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.

7. Looking for a fight?

As I mention on the website, 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 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.

Cheers, Sai

First of all thanks for doing what you're doing, trying to make a positive change. I can imagine it requires a lot of your time, financial resources and causes additional stress. Most people (including me) would probably just give in to avoid the hassle.

Nowadays I only fly to the US if I absolutely have to. Being treated as if you're a criminal and having seen how the US border control shouted at a woman in a wheelchair and made her cry was enough for me to choose other holiday destinations in the future, where you are more welcomed as a tourist.

It fascinates me that so many people think that States operate according to the rule of law.

The OP cites a series of violations of law, followed by his complaints, followed by further violations of law in relation to his complaints.

There is a pattern here, and it is not one that can be fixed by further appeals to the State to obey the law.

While I agree with your arguments and grievances I disagree with your methods. Too adversarial. Just an opinion.

How so? What else are we supposed to do? They're going to do as they please until someone with authority makes it expensive or impossible for them to do so.

specifically the tone of the overall post and the lack of fact citing for his policy recommendations. Why the 1 quart rule? Why not 2 quarts? 3 quarts? ... I am in 100% agreement that the TSA's policies are mostly erroneous and devoid of logic but my recommendation is combat them with objective facts and logic with a touch of social awareness.

The 1 quart may have been specifically tailored to his own requirements, but I can imagine that many people, for most flights, would be fine with medical liquid amounts of 1q or smaller. Trying to bring a gallon or two of something on a plane just may not be practical, regardless of the medical necessity, and other transport might be required. But... the 3oz rule has struck me as stupid from day one.

His suggestion was for testing containers, if there is a legitimate security concern.

This takes less time than arguing over a 2 liter of aloe juice and ends any inquiry there without violating privacy.

That having been said, I don't think it's the best solution, but it seems to be a minor improvement in most cases, and a very big one in a few others.

Can you provide any more specific justification for the specific measure of liquid to allow, or is it just going to be what you can imagine seems reasonable to you?

It's just what seems reasonable to me, which is how I was assuming the OP was justifying his 1 quart recommendation.

My basis was just their current policy: you're allowed 1 quart of non-medical liquids separated into 3 ounce containers. (/eyeroll)

I'd be fine if they want to change the limit. My point is simply that they should test the liquid for whether it's an explosive or not, rather than limiting non-explosives you can carry or who can carry them.

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