TSA Manipulates Opt-Out Day Figures, Harvard Students Sue

Okay, this will be my last post on this topic for at least a little while, and I think this is a good place to leave it. Last post, in explaining why I wasn't that surprised the National Opt-Out Day wasn't a rousing "success" I mentioned a few key factors.

One, only a small percentage of passengers are actually asked to go through the digital strip search machines. Two, the vast majority of airports still aren't equipped with them. Three, when people are traveling on the holidays (or any time for that matter) its very difficult to get them to willingly delay their own trip...or be blamed for delaying others.

I also pointed out something else peculiar about the statistics that the TSA reported about that day. Based on government accounts, the numbers certainly were impressive. Only 1% opted out? Really? “Detroit: 25,000 passengers screened today, and 57 AIT opt-outs!"Amazing, right?

What they failed to mention is how many passengers actually were asked to go through the scanners, and how many of those opted-out. Yes, they reported the number of opt-outs at airports, but they've been contrasting that with the total number of those that flew. Also not reported is how many passengers flew over the holidays versus the past, and whether any decline might be due to people "opting out" of flying altogether.

But there appears to be even more to this data rigging story than that. It turns out, in addition to the above, the machines weren't labeled as "body scanners," nor were there any images posted by or on them showing what they do. In addition, when the TSA reports 99 percent of travelers consented to the body scanners that consent was neither verbal nor written (in other words, nobody will ask you if it's okay). That consent is presumed if you walk into the machine without objecting. So no "opt-out" choices were presented. In other words, to opt out, a traveler would have to realize he was being directed into a body scanner, understand that he had a choice, and stop and speak up to a TSA agent.

But THAT'S not even the whole story. As reported in Rawstory, the group Liberty Guard (libertarian organization) has filed a Freedom of Information Act request with the Transportation Security Administration to determine why many airport imaging scanners were reportedly shut down and roped off on November 24th, the day of a planned "opt out protest.

Eric Dolan writes:

But reports from travelers and local news sources suggest that at some of the busiest airports in the US the TSA backed down and resorted to using the old screening procedures, such as metal detectors and less-intrusive pat-downs.

"We'd like to know if we can expect a policy shift from the TSA or if they were merely attempting to shut down the public outcry regarding their search procedures," Joe Seehussen, President of Liberty Guard said.
"

...

The American Civil Liberties Union (ACLU) says it has received over 900 complaints from travelers over the last month who've been subjected to the new screening procedures.

Click here to read the story in its entirety.

Taking into account those factors, the fact that the National Opt-Out day didn't have the impact some believed it might isn't all that surprising - nor is it a blow to the effort to rein in our increasingly intrusive, wasteful, and absurd security state.

I'm under no illusion there is some national uproar about to take root. I'm also very concerned with the way in which this issue is being framed by a lot of right wing interests who seek to use it as a battering ram against public employees and the President. Similarly, I would hate to see this all lead to some privatization of security scheme.

Nonetheless, I would also take what you have heard from the TSA and the media regarding public opinion on this subject with a healthy dose of skepticism.

On that note, some Harvard students have taken it upon themselves to file a lawsuit seeking to rein in use of these full-body scans and pat-downs. The Boston Globe reports:

Two Harvard Law School students have sued the Transportation Security Administration, seeking to restrict the use of full-body scanners and pat-downs at airports and joining a growing number of lawsuits filed across the country that claim the screening procedures infringe on constitutional rights to privacy.

...

The students, Jeffrey Redfern and Anant Pradhan, are asking the court to ban the TSA from using the screening procedures without reasonable suspicion. Margaret Paget, a partner at the Boston law firm Sherin and Lodgen, said the Harvard students, who are representing themselves in the suit, have a valid claim and a chance of winning.

The suit is at least the sixth filed against the TSA since the agency put the enhanced screening procedures into widespread use following the so-called underwear bomber’s unsuccessful attempt to blow up a plane last Christmas with explosives hidden beneath his clothes. A suit filed in US District Court in Denver last week claimed the pat-downs were “disgusting, unconscionable, sexual in nature.’’ The Electronic Privacy Information Center, an advocacy group, described the scanners as the equivalent of a “digital strip search’’ in a suit filed in Washington in July.

“I see the lawsuits as part of a genuine citizen rebellion against invasive and ineffective airport screening,’’ said John Verdi, senior counsel at the privacy information center. “These scanners fail every conceivable constitutional test. They are not narrowly targeted at individuals that the government suspects of wrongdoing. They are not the least invasive means. And they are not effective at achieving the government’s stated end, which is detecting powdered explosives.’’

Under TSA screening procedures, passengers selected for full-body scans can opt for a pat-down search instead. Redfern and Pradhan both chose the pat-down at Logan International Airport while traveling separately in November, according to their complaint. The search, which included “prodding and lifting of genitals and buttocks,’’ was so intrusive that, “if done non-consensually, would amount to sexual assault in most jurisdictions,’’ the complaint said.

In an interview with the Harvard Law Record, Pradhan said an agent put his fingers inside the waistband of his pants, lifted his buttocks, and felt his groin. “They’ll go all the way up until — well, they go all the way up,’’ he told the law school newspaper.

Click here to read more.

Now, in coming posts I want to get into some new privacy related topics, from Google books to "do not track" legislation and more.