Is TSA Refusing to Let Those With PreCheck Opt Out of Naked Imaging When Selected for Additional Screening?

A week ago I reported that the TSA is taking away your right to opt out of naked imaging screening.

If you alarm inside the ‘advanced imaging’ device you get a thorough pat down. If you opt out, you go directly to that pat down. How requiring the imaging before the pat down is supposed to improve security (when TSA misses most things going through the checkpoint and the scanners are easy to foil by anyone trying anyway) makes no sense at all.

There’s been some speculation that –TSA only plans to deny opt outs to those on watch lists. Which lists remained a question, and of course the TSA privacy impact assessment suggests the mandatory nature of the screening is entirely at their discretion (essentially for any reason or no reason). And those watch lists are constitutionally problematic as well.

I’ve suggested that even if they’re reassuring people the opt out exclusion applies only to ‘scary people’ that there’s no reason it would actually be limited in that way. I figured that any creeping extension would take some time, but that might not be the case.

Even if the exclusion is intended to be limited, since the rules themselves are secret there’s no way to challenge whatever the TSA says in the moment when you’re going through the checkpoint at the airport. And the TSA can justify any decision they make ex ante on the basis of needing to vary their protocols ‘to keep terrorists off balance.’ Any violation of law and rules by an individual suddenly becomes an intentional terrorist-fighting strategy.

Already that may be happening. Lynn reported her experience in the comments:

FYI – those with TSA Pre-Check are now subject to random compulsory body scans, per my experience at TSA in Akron, OH yesterday.

I was flagged while going through the metal detector for Pre-Check. The agent handed me a laminated green sheet and told me I was randomly selected for additional screening and needed to go through the full body screening machine.

When I tried to opt-out I was told that was “no longer an option for those with TSA Pre-Check.”

I pushed back until a manager was called over (and several other passengers were taking note of my distress), finally having to reveal my (very early) pregnancy to them as justification for my opt-out.

To their credit, the agents immediately respected my opt-out and we moved forward with the pat down. That being said, there seems to be a lot of confusion about this new opt-out policy among agents on the ground. I was not given any assurance that my pregnancy will be sufficient opt-out justification in the future, just told that the rules had changed and those with TSA Pre-Check are not eligible for opting-out.

We know that the TSA doesn’t actually catch contraband through the checkpoint the vast majority of the time. So their procedures aren’t actually meaningful for security, leaving aside that they’ve never caught a terrorist. And leaving aside that a simple sewing kit is all you need to trick the naked imaging machines that most passengers ‘assume the position’ in at TSA checkpoints.

TSA Agents in Charlotte Watch News of the TSA’s Failure to Detect Weapons and Bombs, Instead of Searching for Weapons and Bombs (HT: Tocqueville)

Remember that TSA’s very use of these imaging machines has been illegal, according to the federal courts because they’ve failed to follow required procedures for their use.

Assume the position…

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. Thank you Gary for shining the light on these couldn’t-get-hired-at-McDonalds brown shirts (no offense to McD employees). This entire agency is out of control and continues to disobey the law yet they want the flying public to be good, little sheep. They deserve neither our respect or our gratitude.

  2. Gary – The TSA can and will do whatever is necessary and proper to protect the American public, including denying “opt-out” to certain or all passengers flying within the United States. The TSA has Congressional authority to prevent certain individuals from flying and has established very strict security requirements for flying. For the most part these have been upheld time and time again by various federal courts. There is no “constitutional” argument protecting the right to an “opt-out” of full body imaging. Congress has delegated authority to DHS and TSA to create regulations and procedures to carry out their intelligible duties. The simple fact is that the Federal Government has authority to regulate and screen flyers and by choosing to fly a person has subjected themselves to those regulations. This is not an issue for the courts, it is a “political question” and one that is best left to the legislature.

    While I agree that the “No-Fly” list may present limited due process issues – I doubt that it will be struck down in the future. I may not personally love the list, but it serves an important function protecting interstate commerce.

    I’ve been an avid reader of your blog and Boardingarea, but you are losing me with these posts. I doubt that you are a legal expert in this field and you are espousing ideas that are downright misleading to say the least. I had higher expectations for your blog.

  3. @A – I have written consistently that I do not expect the federal courts to strike down the use of advanced imaging. However, the federal courts have consistently held that the TSA’s roll out of these machines has been in violation of federal law (so they’re given more and more time to come into compliance).

    I don’t expect that the courts will strike down no fly lists, although I believe those are highly problematic and that injurious to a free society.

    I am not here making a legal claim or prediction, privacy rights and security are not merely a legal issue. I object to the use of these machines, to TSA security theater, and to the expansion of the security state more generally.

    My goal is writing isn’t to attract readers, so I apologize if I ‘lose you’ or anyone else with a given post that I write, I’ve always written for myself and welcomed discussion in the comments. I enjoy confronting ideas that I disagree with, and always hope that others will as well rather than seeking refuse from those.

  4. @A—do you have an example or evidence of where TSA screening has actually thwarted actual attacks?

    You keep on talking about being “safe,” but the statistics bear out that, even during the crazy insecure hijack era of the 70s and early 80s, it was still orders of magnitude safer to fly than to, say, drive your car to the airport for your very flight. And, the irony is, the era of hijacking is *gone*. Even if people brought weapons aboard, they’d be tackled the moment they brandished them as the rest of the plane would rise up as one, very angry.

    So, you’re reduced to screening for bombs, and studies have shown that the TSA’s current intrusive procedures OFTEN MISS THIS. How often do you hear about bombs on planes? Including elsewhere in the world where they don’t have nearly as intrusive security? Again, the likelihood of you being in a car accident on your way to the airport is much, much higher.

    There is no such thing as absolute security, and there needs to be a compromise. As Gary points out, this is security theater. Gary: please keep up with these posts. If A is so fearful as to stop reading a blog over them, that’d be unfortunate.

  5. America.. Repeat after me: “while I fully appreciate this Orwellian security theater and its thugs who deploy it…. “I’ve got a heart condition and pacemaker, that scanner could kill me”.

    Bet they’d rather not deal with your convulsing carcas, during rush hour especially.

  6. The fact of the matter is, the TSA is a joke. They couldn’t find their @$$ with both hands. They routinely miss 90% of test items and humiliate seniors and children with ridiculous no common sense attitude and policies. They are not qualified for their job. If the USA was really serious about security, they would run all the airports like Ben Gurion Airport. They would have educated, well trained agents, and good procedures in place. As it stands now, the entire organization is a joke and we are giving up our privacy in the name of a false sense of security.

  7. @BidDaddyJ – I never stated that the policies and procedures of the TSA are effective. I stated that the place to debate these policies and create “effective” regulations (if that exists) is NOT the court system. The authority should be enacted by Congress and then the agency should create regulations, which is what the TSA has done. If you don’t like the regulations (which is the case here) then go to your Member of Congress and TSA/DHS leadership to complain. Calling certain TSA actions “unconstitutional” is a very – very long stretch and not supported by current case law. I thoroughly encourage debates about TSA policies, but not agreeing with a policy is different than it rising to the level of unconstitutionality.

    FYI – I completely agree that the TSA misses the target, is not an effective organization, and is virtually “unchecked”. I’m not a fan of them, but we do need some sort “regulation” to “deter” future attacks – the question is what actually works.

  8. The TSA is hands down, the biggest waste of taxpayer money this country has ever established. I’m old enough that I might not see the day when legal experts will say that the establishment of TSA and no-fly lists were the beginning of the end of our (supposed) freedoms. Just keep being good little sheeple giving up your right to due process because it only affects the “bad” people. You never know when you will fall into some politicians’ definition of “bad” people.

  9. @A – I’ll tell you what works – my fellow passengers, that’s who. Passengers don’t just sit idly by anymore. And, by the way, the last plane that blew up by bomb was blown up by an insider who would not have been checked by TSA. Just how very hard do you think it would be for that to happen in the U.S. given the number of people who have access to any given plane? Waste my tax dollars somewhere else.

  10. @A – “Choosing to fly” 1873 called, your horse-drawn carriage is departing. Expected travel time is a few weeks, give or take a few weeks depending on the weather. People don’t choose to fly anymore. It’s all by a requirement for living in society these days. If you have stage 4 cancer and are extremely weak and the only chance you have is a cancer treatment center in Seattle or Boston, but you live in Austin, TX, you’re not going to make it unless you fly.

    @A – “limited due process issues” It’s hard to take you seriously after that statement. Have you read about anyone’s experience in getting off a no-fly list? If you get on one by mistake, you should probably try to get elected to the U.S. Senate, that’s probably your best bet. See Sen. Kennedy. Otherwise, there is no real process to challange your inclusion on a no-fly list.

  11. A says: “I’ve been an avid reader of your blog and Boardingarea, but you are losing me with these posts. I doubt that you are a legal expert in this field and you are espousing ideas that are downright misleading to say the least. I had higher expectations for your blog.”

    Really, Gary, how dare you write what you want on your blog? Don’t you know you’re beholden to what other people want you to write about? Furthermore, how dare you bother them with pesky notions on rights and law and civil liberties? I mean, who cares? Just get me to my flight on time!

  12. Thanks for the good work! Please continue your efforts to inform the public.

    TSA is the most horrible injustice that the federal government has inflicted on the American people since McCarthyism. Are you now or have you ever been a Terrorist?

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