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…