“You don’t need to see his identification.”
On November 21, 2010, I was allowed to enter the U.S. through an airport security checkpoint without being x-rayed or touched by a TSA officer. This post explains how.
Edit: For the sake of brevity, most of the quotes below are paraphrases. I have uploaded the actual audio and it is available here.
This past Sunday, I was returning from a trip to Europe. I flew from Paris to Cincinnati, landing in Cincinnati/Northern Kentucky International Airport.
As I got off my flight, I did all of the things that are normally requested from U.S. citizens returning from abroad. I filled out the customs declarations, confirmed that I hadn’t set foot on any farmland, and answered questions about the chocolates that I had purchased in Switzerland. While I don’t believe that some of these questions are necessary, I don’t mind answering them if it means some added security. They aren’t particularly intrusive. My passport was stamped, and I moved through customs a happy citizen returning home.
But wait – here was a second line to wait in.
This new line led to a TSA security checkpoint. You see, it is TSA policy at the Cincinnati Airport that people (both citizens and non-citizens alike) from international flights are screened as they enter the airport, despite the fact that they have already flown. Even before the new controversial security measures were put in place, I found this practice annoying. But now, as I looked past the 25 people waiting to get into their own country, I saw it: the dreaded Backscatter imaging machine.
Now, I’ve read a fair amount about the controversy surrounding the new TSA policies. I certainly don’t enjoy being treated like a potential terrorist in my own country, but I’m also not a die-hard constitutional rights advocate. However, for some reason, I was irked. Maybe it was the video of the 3-year old getting molested, maybe it was the sexual assault victim having to cry her way through getting groped, maybe it was the father watching teenage TSA officers joke about his attractive daughter. Whatever it was, this issue didn’t sit right with me. We shouldn’t be required to do this simply to get into our own country.
So, since I had nobody waiting for me at home and no connecting flight to catch, I had some free time. I decided to test my rights.
After putting all my stuff through the x-ray, I was asked to go through the Backscatter. I politely said that I didn’t want to. The technician quipped to his colleague, “We’ve got an opt-out.” They laughed. He turned back and started to explain.
After he finished, I said, “I understand what the pat-down entails, but I wanted to let you know that I do not give you permission to touch my genitals or the surrounding area. If you do, I will consider it assault.”
He called his manager over, who again informed me of the policy. Throughout this event, this happened quite a few times. After raising my concerns regarding the policy to an officer, they often simply quoted back the policy. For the sake of brevity, I will simply say “Policy restatement.”
I said, “I am aware that it is policy, but I disagree with the policy, and I think that it is unconstitutional. As a U.S. citizen, I have the right to move freely within my country as long as I can demonstrate proof of citizenship and have demonstrated no reasonable cause to be detained.”
Policy restatement. “You have two options – the Backscatter or the pat down. It is your choice, but those are the only ways you can go through security.”
I asked if I could speak to his manager.
“I’m the supervisor here.”
“Do you have a manager?”
“Yes, but he’s very far away at the moment. And he’ll say the same thing I am.” Policy restatement.
At this point, I took out my iPhone, activated the voice recorder, and asked The Supervisor, “Per my constitutional rights, I am not allowed to be detained without reasonable cause for arrest. Now, am I free to go?”
He answered, “If you leave, we will call the APD.”
I asked, “Who is the APD?”
“The Airport Police Department.”
I said, “Actually, that’s probably a good idea. Let’s call them and your manager.”
The Supervisor turned and walked away without saying anything. I stood and waited, chatting to The Technician about how they aren’t allowed to wear radiation badges, even though they work with radiation equipment. He said, “I think I’m a couple steps ahead of you regarding looking out for my own health.”
I stood and waited for 20 minutes. Two cops showed up. Big ones. I admit, I did not want to be handcuffed by these guys.
One cop was older than the other, but they were clearly partners. Neither of them took the lead on answering my questions, and neither of them told the other what to do. They came over to me and asked me to explain the issue. I first showed them the iPhone. After I explained my position, they restated the policy to me.
I said, “Yes sir. I understand the policy, but I still disagree and I still don’t think that I can be made to do these searches in order to go home. Now am I free to go?”
They didn’t answer.
I repeated the question. “Since you are actual police officers and not simply TSA, I am sure you have had much more training on my rights as a U.S. citizen, so you understand what is at stake here. So, am I free to go? Or am I being detained?”
Younger Cop answers, “You aren’t being detained, but you can’t go through there.”
“Isn’t that what detaining is? Preventing me from leaving?”
“You can leave if you want, but it has to be that direction.” He points back towards customs.
Younger Cop asks, “Why are you doing this?”
I explain that I’m worried that the Backscatter has unproven health risks. And that for all he knows, I might be a sexual assault victim and don’t feel like being touched. I say that the policy is needlessly invasive and it doesn’t provide any added security.
He asks, “But didn’t you go through this when you left on your flight?”
“Yes,” I say, grinning, “But I didn’t want to miss my flight then.”
The cops leave, and I stand around and wait some more. It should be noted that throughout this time, no fewer than 10 TSA officers and technicians are standing around, watching me. I was the only one still waiting to go through security.
The cops, The TSA Supervisor, and another guy were standing behind the checkpoint deliberating about something. I explained this to my iPhone and The Supervisor shouted, “Does that thing have video?”
“No sir. Just audio.”
After a while, Younger Cop comes and asks me for my papers. My passport, my boarding pass, my driver’s license, and even a business card. I give him everything except the business card. He told me that he was just gathering information for the police report, which is standard procedure.
He left, and a Delta Airlines manager comes over and starts talking to me. He is clearly acting as a mediator. He asks what I would consent to, if given my options. I explain that I want the least intrusive possible solution that is required. I say, “I will not do anything that is not explicitly stated on recording as mandatory.” He leaves.
Let me pause and clarify the actors’ moods here, because they will soon start to change:
The Supervisor: Very standoffish. Sticking to policy, no exceptions.
The TSA Officials: Mainly amused. Not very concerned otherwise.
The Cops: Impartial observers and consultants. Possibly a bit frustrated that I’m creating the troubles, but being very professional and respectful regardless.
The Delta Supervisor: Trying to help me see the light. He doesn’t mind the work – he’s here all day anyway, so he’d rather spend it ensuring that his customer is happy.
After another wait, Older Cop returns, and asks me what I want. I tell him, “I want to go home without going through the Backscatter and without having my genitals touched. Those are my only two conditions. I will strip naked here if that is what it takes, but I don’t want to be touched.”
He offers as an alternative, “What if we were to escort you out with us? It would involve a pat-down, but it would be us doing it instead.”
“Would you touch my balls?”
“I don’t want to touch your – genital region, but my hand might brush against it.”
I clarify, “Well, like I said, I’ll do whatever you say is mandatory. If you tell me that you have to touch my balls—“
“—I said no such thing. You’re putting words in my mouth.”
“OK. I apologize. If you say that a pat-down is mandatory, and that as a condition of that pat-down, I may have my genitals brushed against by your hand, even though you don’t want to, I will do that. But only if you say it is mandatory.”
“I’m not going to say that.”
“OK. So am I free to go?”
“You are free to go in that direction.” He points back towards customs. Then he walks away to commune with the others.
My iPhone is running out of battery, so I take out my laptop, sit in a corner, and plug it in. I have some work to do anyway, so I pull up Excel and start chugging away for about 20 minutes.
This is where the turning point happens.
The cops come back and start talking with me. Again, they are asking me questions. Why I’m doing it? Don’t I have a connection to make? They are just curious at this point – they are no longer trying to find a contradiction in my logic.
I eventually ask what would happen if I got up and left, and just walked through security. They shrugged. “We wouldn’t do anything on our own. We are only acting on behalf of the TSA. They are in charge of this area.”
“So if he told you to arrest me, you would? And if he didn’t, you wouldn’t?”
“That’s right,” Younger Cop says.
“OK, well then I think it is best if we all talk together as a group. Can you call them over?”
The Supervisor returns, along with the Delta Manager. The Supervisor is quite visibly frustrated.
I explain, “The police have explained to me that it is your call on whether or not I am being detained. If I walked through that metal detector right now, you would have to ask them to arrest me in order for them to do anything.”
He starts to defer responsibility to the officers. They emphasize that no – they have no issue with me and they are only acting on his behalf. It is his jurisdiction. It is policy, not law. They won’t detain me unless he tells them to.
So I emphasize the iPhone again, and ask,” So, if I were to get up, walk through the metal detector, and not have it go off, would you still have them arrest me?”
The Supervisor answers, “I can’t answer that question. That is no longer an option because you were selected for the Backscatter.”
“Well actually, you can answer the question because it is a ‘yes or no’ question. If I got up and left, would you have them arrest me?”
“I can’t answer that question.”
The moods have changed. The cops are now frustrated with him because he’s pawning off his decision making responsibility to them. He’s preventing what is clearly a logical solution to the problem. Meanwhile, the Supervisor is just growing more and more furious with me.
In another deferment of responsibility (which he probably thought was an intimidation factor), he declared, “Well then I guess I’m just going to have to call the FSD.”
I ask, “What’s the FSD?”
“The Federal Security Director.” And he walks away.
I can see him talking on the phone to the FSD – a man apparently named Paul – and I can only catch parts of the conversation: “No, he’s been perfectly polite… We tried that… Constitutional rights.”
He walks over to Older Cop and hands him the phone. I can hear similar sound bites. They hang up, deliberate some more, and then wait some more.
Meanwhile, I’m typing away on my computer. Answering emails, working on my Excel model – doing things that I would have done at home regardless.
The Supervisor walks over and stands uncomfortably close to me. After typing for a bit more, I look up. His voice shakes, “I don’t know if I ever introduced myself.” He pulls out his badge. “My name is XXX XXX. Here is my badge. Now, I’ve shown you my credentials.”
Ah – he’s gotten the Miranda talk. I hide my smile.
“Here’s what we’re going to do. I’m going to escort you out of the terminal to the public area. You are to stay with me at all times. Do you understand?”
“Will I be touched?”
“I can’t guarantee that, but I am going to escort you out.”
“OK. I will do this. But I will restate that I still do not give you permission to touch my genitals or the surrounding area. If you do, I will still consider it assault.”
And then came the most ridiculous scene of which I’ve ever been a part. I gather my things – jacket, scarf, hat, briefcase, chocolates. We walk over to the staff entrance and he scans his badge to let me through. We walk down the long hallway that led back to the baggage claim area. We skip the escalators and moving walkways. As we walk, there are TSA officials stationed at apparent checkpoints along the route. As we pass them, they form part of the circle that is around me. By the end of the walk, I count 10 TSA officials and 2 uniformed police officers forming a circle around me. We reach the baggage claim area, and everyone stops at the orange line. The Supervisor grunts, “Have a nice day,” and leaves.
In order to enter the USA, I was never touched, I was never “Backscatted,” and I was never “metal detected.” In the end, it took 2.5 hours, but I proved that it is possible. I’m looking forward to my next flight on Wednesday.
You can email Matt here.