Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution—he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections—even in an airport.

Appellants contend that Mr. Tobey has not pled a cognizable First Amendment claim because their actions were "reasonable" given Mr. Tobey’s "bizarre" and "disruptive" conduct....

Even conceding that Mr. Tobey’s behavior was "bizarre," bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his "bizarre" behavior, Appellants’ cannot be said to have acted reasonably. This is especially the case given that the First Amendment protects bizarre behavior

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

Congress in 2002 set up a program giving airports the option of having private employees conduct screening operations. Unfortunately, TSA was put in charge of deciding which locations could participate. A total of 16 out of 440 commercial airports nationwide got into the program before TSA Administrator John S. Pistole slammed the door shut last year.

[T]op Democrats want the TSA to continue rejecting applications to the program "until the costs and possible benefits can be accurately assessed," as Rep. Bennie G. Thompson of Mississippi, the ranking member on the House Homeland Security Committee, urged.

Right now, the performance of private screeners is assessed under a process directed by TSA. It's not particularly surprising that this government agency is going to do everything it can to limit potential competition. Congressional auditors found, "TSA has not conducted regular reviews comparing private and federal screener performance and does not have plans to do so." The agency isn't about to document its own relative failure.

At Ronald Reagan Airport, for example, angry flyers aren't given a form they can turn in on the spot to document their concerns. Instead, they're handed a tiny, easily lost sliver of paper containing TSA's website and mailing address.

Shelbi Walser, 12, has brittle bone disease, and was flying to Tampa, Fla., to receive treatment on Sunday when she was randomly selected for an explosives screening on her way through security. Tammy Daniels, Walser's mother, said that her daughter tested positive for explosives when a screener swabbed Walser's palms and fingers.

Speaking with ABC affiliate WFAA, Walser said that she has no idea how the traces of explosive got on her. "It could have come off fertilizer, because we have chickens. I could have run through something from them," she said. "It could have just come off the ground, because I roll through everything."

"I am by no means undermining our safety in the air. After 9/11, by no means am I doing that," Daniels told WFAA. "But when it comes to children, common sense is not in a textbook."

Compare the dangers of air travel to those of driving. To make flying as dangerous as using a car, a four-plane disaster on the scale of 9/11 would have to occur every month, according to analysis published in the American Scientist. Researchers at Cornell University suggest that people switching from air to road transportation in the aftermath of the 9/11 attacks led to an increase of 242 driving fatalities per month—which means that a lot more people died on the roads as an indirect result of 9/11 than died from being on the planes that terrible day. They also suggest that enhanced domestic baggage screening alone reduced passenger volume by about 5 percent in the five years after 9/11, and the substitution of driving for flying by those seeking to avoid security hassles over that period resulted in more than 100 road fatalities.

According to one estimate of direct and indirect costs borne by the U.S. as a result of 9/11, the New York Times suggested the attacks themselves caused $55 billion in "toll and physical damage," while the economic impact was $123 billion. But costs related to increased homeland security and counterterrorism spending, as well as the wars in Iraq and Afghanistan, totaled $3,105 billion. Mueller and Stewart estimate that government spending on homeland security over the 2002-11 period accounted for around $580 billion of that total.

The company “may have attempted to defraud the government by knowingly manipulating an operational test,” Representative Mike Rogers, chairman of the House Transportation Security Subcommittee, said in a letter to Transportation Security Administration chief John Pistole Nov. 13. Rogers said his committee received a tip about the faked tests.

“If you have a team of four people [planning an attack], the day before the operation when you print the boarding passes, whichever guy is going to have the least screening is going to be the one who’ll take potentially problematic items through security,” said Soghoian, now a senior policy analyst at the American Civil Liberties Union. “If you know who’s getting screened before you walk into the airport, you can make sure the right guy is carrying the right bags.

“The entire security system depends on the randomness,” he said. “If people can do these dry runs, the system is vulnerable."

In case you can't see the video, a TSA agent was taped at work handling the iPad ABC had left behind, and simply decided to take it home with him. When confronted at his home by ABC's Brian Ross, Agent Andy Ramirez denied he had the device until Ross initiated the iCloud application used to track the iPad and its audible alert. Ramirez then produced the iPad and valiantly blamed having it on his wife, who was kind enough to stand next to him and not punch him repeatedly in the testicles on camera.

It may be tempting to simply write this off as the occasional occurrence of bad actors in any sector of any industry, but theft by TSA agents is likely more widespread a problem than you realize. Nearly 400 TSA agents have been fired specifically for theft since 2003. One would expect, of course, that the number of agents fired represents a fraction of those that have actually stolen something.

And to think, they've done all of this thieving without managing to catch a single terrorist.

Could the signaling be more incoherent? The hearing suggests both that unknown horrors loom and that we should shrink the most visible federal security agency.

Lace up your shoes, America—we’re goin’ swimmin’!

Our federal politicians still can’t bring themselves to acknowledge that terrorism is a far smaller threat than we believed in the aftermath of the September 11, 2001, attacks, and that the threat has waned since then. (The risk of attack will never be zero, but terrorism is far down on the list of dangers Americans face.)

The good news is that the public’s loathing for the TSA is just as persistent as stated terrorism fears. This at least constrains congressional leaders to make gestures toward controlling the TSA. Perhaps we’ll get a “smarter, leaner” overreaction to fear.

Public opprobrium is a constraint on the growth and intrusiveness of the TSA, so I was delighted to see a new project from the folks at We Won’t Fly. Their new project highlights the fact that the TSA has still failed to begin the process for taking public comments on the policy of using Advanced Imaging Technology (strip-search machines) at U.S. airports, even though the D.C. Circuit Court of Appeals ordered it more than a year ago.

The project is called TSAComment.com, and they’re collecting comments because the TSA won’t.

The purpose of TSAComment.com is to give a voice to everyone the TSA would like to silence. There are many legitimate health, privacy and security-related concerns with the TSA’s adoption of body scanning technology in US airports. The TSA deployed these expensive machines without holding a mandatory public review period. Even now they resist court orders to take public comments.

TSAComment.com has gotten nearly 100 comments since the site went up late yesterday, and they’re going to deliver those comments to TSA administrator John Pistole, Homeland Security Secretary Janet Napolitano, and the media.

The D.C. Circuit Court did require TSA to explain why it has not carried out a notice-and-comment rulemaking on the strip-search machine policy, and assumedly it will rule before too long.

Getting the TSA to act within the law is important not only because it is essential to have the rule of law, but because the legal procedures TSA is required to follow will require it to balance the costs and benefits of its security measures articulately and carefully. Which is to say that security policy will be removed somewhat from the political realm and our incoherent politicians and moved more toward the more rational, deliberative worlds of law and risk management.

Hope springs eternal, anyway…

There could be no better tribute to the victims of 9/11 than by continuing to live free in our great country. I won’t shrink from that goal. The people at TSAComment do not shrink from that goal. And hopefully you won’t either.

Cross-posted from Cato-at-Liberty.

Petitioner offers no basis whatsoever for its assertion that TSA has delayed in implementing this Court’s mandate. On the contrary, as the Sammon Declaration demonstrates, TSA has been keenly aware of the importance of implementing the Court’s directive, and has given high priority to the AIT rulemaking. Despite “significant personnel losses” in the group of economists within TSA charged with completing the regulatory analysis... the agency began on the heels of the Court’s ruling the process of preparing the documents necessary for notice-andcomment rulemaking, and has devoted almost all of the staff available to conduct the required economic analysis to its expedited completion, even going so far as to hire contract consultants to accelerate its completion despite unforeseen personnel losses

In sum, there has been no "waiting" and no "delay."

Over at the ACLU's Blog of Rights, Devon Chaffee writes of her most recent experience passing through airport security in Burlington, Vermont:

The agent then turned to me with grin that was a bit perky for even my taste given the early hour. "So where are you folks off to?" he energetically inquired.

I like to think that I'm a friendly person, so I answered him, expecting a brief innocuous exchange about the Washington DC heat and the scourge of Capitol Hill gridlock. Instead, the agent responded to my answer with a barrage of questions about where in Vermont we had stayed, how long we had traveled, and why we had traveled there. I could feel a suspicious expression involuntarily creep across my face. The New Englander inside me was screaming "you don't know this person from a hole in the wall and you certainly don't want to divulge to him the details of your family vacation!" And yet it seemed that the more discomfort I expressed, the more persistent the agent's questioning became, following us down the line, grilling me unrelentingly about our vacation plans and baggage status.

Steve Gunn, a former Muskegon Chronicle staff writer who now works for the Education Action Group, writes in the pages of his old paper:

At that point she asked me what my business would be in Grand Rapids.

"I'm headed home," I replied.

Then she wanted to know where home was. That's when the mental alarms went off and I realized I was being interrogated by Big Brother in drag. I asked her why the federal government needed to know where I was going and what I would be doing. She explained that the questions were part of a new security "pilot program."

I then told her I am an American citizen, traveling within my own country, and I wasn't breaking any laws. That's all the federal government needed to know, and I wasn't going to share any more. Not because I had anything to hide. It was because we live in a free country where innocent people are supposedly protected from unwarranted government intrusion and harassment.

At that point the agent yelled out, "We have another refusal." One of my bags was seized and I was momentarily detained and given a hand-swab, which I believe was to test for residue from bomb-making materials.

I passed the bomb test and was told I could move on, but I hung around a moment and told everyone within listening range what I thought about this terrifying experience.

As can be expected, the checkpoints have become "general purpose." Suspicionless searches are now the norm, with many drivers being routed to the "secondary" for additional questioning. None of this is necessary, useful or even particularly legal, but they continue to operate simply because US citizens are generally cooperative, even when their rights are being violated. If you don't cooperate with your own violation, as in the case with Gunn above, and the video below, the ones doing the violating (under the auspices of "security") treat the assertive citizen like he's being unreasonable and possibly a threat.

While the US is far from an actual police state, the encroachment on our rights shows no sign of abating. The TSA defends its severely flawed "behavior detection" system as being a crucial and useful part of law enforcement as a whole. Defenders of DHS checkpoints are quick to cite criminal actions by non-citizens and the general hazy threat of "terrorism" in support of their activities. No one really expects anyone in power to say "Wait, this is going too far," and start rolling back authority and legislation. But someone in power should really start questioning why it became acceptable in this country, a nation built on individual freedom, to interrogate citizens simply because they're traveling from one internal destination to another by vehicle.

Reader pixelpusher220 writes in about the tale of how one man's shirt got him booted off of a Delta airplane after passing through TSA security, as recounted by Cory Doctrow.

Back in 2007, I designed a shirt for Woot! that featured a screaming eagle clutching an unlaced shoe and a crushed water bottle, surrounded by the motto MOISTURE BOMBS ZOMG TERRORISTS ZOMG GONNA KILL US ALL ZOMG ZOMG ALERT LEVEL BLOODRED RUN RUN TAKE OFF YOUR SHOES. Among the lucky owners of this garment is Arijit "Poop Strong" Guha, who proudly wore it this week as he headed for a Delta flight from Buffalo-Niagara International Airport to his home in Phoenix.

But it was not to be. First, the TSA Delta agents questioned him closely about the shirt, and made him agree to change it, submit to a secondary screening and board last. He complied with these rules, but then he was pulled aside by multiple Niagara Frontier Transportation Authority cops, more TSA, and a Delta official and searched again.

It's worth noting that these shirts were designed by Cory Doctrow and sold as part of a charitable program.

Now, I'll restate it again, Arijit had already gone through the TSA screening when he and his wife were then approached by Delta employees at the gate who informed him that he had committed the crime of making other passengers "uncomfortable". When Arijit informed the Delta employees that he was wearing the shirt specifically to mock the security theater we call an airport these days, he was put through another round of screening at the gate by several TSA and local agents and then told that he would be allowed to board. The Delta pilot, catching wind of this, requested Arijit not be allowed to board, because laughter would not be tolerated on his enormous hunk of flying metal. Oh, and they also refused to allow his wife to board the plane too. No reason was apparently given for this, but I'm guessing there may have been some plaid mixing with pin-stripes in her outfit, and the pilot found it to be lacking in fabulousness.

Or maybe there was another reason. According to Arijit, the officer wanted to interrogate him further, saying that Arijit had given a "stupid answer" and "looked foreign":

“Certainly he wasn’t implying that dark-skinned people are not real Americans and that white people are the only true Americans,” Arijit writes in part of his snark-filled synopsis. “Fortunately, Mark’s request was denied. Apparently, someone at NFTA recognized this bigoted meathead for the bigoted meathead he was and that nationality is simply a concept that exists solely on paper and cannot be discerned from just looking at someone.”

It seems pretty clear that the program only catches criminals, and no terrorists. You'd think there would be more important things to spend $200 million a year on.

Officers said managers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems.

[....] The officers identified nearly two dozen co-workers who they said consistently focused on stopping minority members in response to pressure from managers to meet certain threshold numbers for referrals to the State Police, federal immigration officials or other agencies.

The stops were seen as a way of padding the program’s numbers and demonstrating to Washington policy makers that the behavior program was producing results, several officers said.

In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that 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.”

U.S. vs Davis goes onto to state “[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.”

U.S. vs Davis was upheld by the 9th Circuit Court in 1986 in U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 with this ruling “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

ORDERED that the Department of Homeland Security, et al., respond to the petition on or before August 30, 2012.

"It is the speech itself that the state is seeking to punish, and that it cannot do," Circuit Judge David Rees said.

Deputy District Attorney Joel Petersen argued that Brennan only spoke of a protest minutes later. Petersen urged the judge to recognize that distinction, "otherwise any other person who is ever naked will be able to state after the fact" that it was done in protest.

"We have put in place through TSA a very elaborate system [in airports]. We all go through those metal detectors and those secondary searches. And we've put a lot of focus on the airlines for good reason. But we have neglected the mass transit components, generally speaking," she said.

Speier said 2 million people fly each day, compared with more than 5 million who ride the subway each day in New York City alone. She pointed out that the most recent terrorist attacks have been on mass transit. Also, when U.S. Special Forces raided Osama Bin Laden's compound last year, intelligence gathered revealed the next attack was intended for mass transit.

"The writing is on the wall. We need to be better prepared than we are right now," Speier said.

• As of February 15, 2012, the total value of TSA’s equipment in storage was, according to TSA officials, estimated at $184 million. However, when questioned by Committee staff, TSA’s warehouse staff and procurement officials were unable to provide the total value of equipment in storage.
• Committee staff discovered that 85% of the approximately 5,700 major transportation security equipment currently warehoused at the TLC had been stored for longer than six months; 35% of the equipment had been stored for more than one year. One piece of equipment had been in storage more than six years – 60% of its useful life.
• As of February 2012, Committee staff discovered that TSA had 472 Advanced Technology 2 (AT2) carry-on baggage screening machines at the TLC and that more than 99% have remained in storage for more than nine months; 34% of AT2s have been stored for longer than one year.
• TSA knowingly purchased more Explosive Trace Detectors (ETDs) than were necessary in order to receive a bulk discount under an incorrect and baseless assumption that demand would increase. TSA management stated: “[w]e purchased more than we needed in order to get a discount.”

• TSA intentionally delayed Congressional oversight of the Transportation Logistics Center and provided inaccurate, incomplete, and potentially misleading information to Congress in order to conceal the agency’s continued mismanagement of warehouse operations.
• TSA willfully delayed Congressional oversight of the agency’s Transportation Logistics Center twice in a failed attempt to hide the disposal of approximately 1,300 pieces of screening equipment from its warehouses in Dallas, Texas, prior to the arrival of Congressional staff.
• TSA potentially violated 18 U.S.C. Sec. 1001, by knowingly providing an inaccurate warehouse inventory report to Congressional staff that accounted for the disposal of equipment that was still in storage at the TLC during a site visit by Congressional staff.
• TSA provided Congressional staff with a list of disposed equipment that falsely identified disposal dates and directly contradicted the inventory of equipment in the Quarterly Warehouse Inventory Report provided to Committee staff on February 13, 2012.

More than a decade after 9/11, it is a national embarrassment that our airport security system remains so hopelessly bureaucratic and disconnected from the people whom it is meant to protect. Preventing terrorist attacks on air travel demands flexibility and the constant reassessment of threats. It also demands strong public support, which the current system has plainly failed to achieve.

The crux of the problem, as I learned in my years at the helm, is our wrongheaded approach to risk. In attempting to eliminate all risk from flying, we have made air travel an unending nightmare for U.S. passengers and visitors from overseas, while at the same time creating a security system that is brittle where it needs to be supple.

Any effort to rebuild TSA and get airport security right in the U.S. has to start with two basic principles:

First, the TSA's mission is to prevent a catastrophic attack on the transportation system, not to ensure that every single passenger can avoid harm while traveling. Much of the friction in the system today results from rules that are direct responses to how we were attacked on 9/11. But it's simply no longer the case that killing a few people on board a plane could lead to a hijacking. Never again will a terrorist be able to breach the cockpit simply with a box cutter or a knife. The cockpit doors have been reinforced, and passengers, flight crews and air marshals would intervene.

Second, the TSA's job is to manage risk, not to enforce regulations. Terrorists are adaptive, and we need to be adaptive, too. Regulations are always playing catch-up, because terrorists design their plots around the loopholes.

1. No more banned items: Aside from obvious weapons capable of fast, multiple killings—such as guns, toxins and explosive devices—it is time to end the TSA's use of well-trained security officers as kindergarten teachers to millions of passengers a day. The list of banned items has created an "Easter-egg hunt" mentality at the TSA. Worse, banning certain items gives terrorists a complete list of what not to use in their next attack. Lighters are banned? The next attack will use an electric trigger.

2. Allow all liquids: Simple checkpoint signage, a small software update and some traffic management are all that stand between you and bringing all your liquids on every U.S. flight. Really.

3. Give TSA officers more flexibility and rewards for initiative, and hold them accountable: No security agency on earth has the experience and pattern-recognition skills of TSA officers. We need to leverage that ability. TSA officers should have more discretion to interact with passengers and to work in looser teams throughout airports. And TSA's leaders must be prepared to support initiative even when officers make mistakes. Currently, independence on the ground is more likely to lead to discipline than reward.

4. Eliminate baggage fees: Much of the pain at TSA checkpoints these days can be attributed to passengers overstuffing their carry-on luggage to avoid baggage fees. The airlines had their reasons for implementing these fees, but the result has been a checkpoint nightmare. Airlines might increase ticket prices slightly to compensate for the lost revenue, but the main impact would be that checkpoint screening for everybody will be faster and safer.

5. Randomize security: Predictability is deadly. Banned-item lists, rigid protocols—if terrorists know what to expect at the airport, they have a greater chance of evading our system.

Electronic items smaller than the standard sized laptop should not need to be removed from your bag or their cases. It’s that simple.

It’s important to remember, however, that our officers are trained to look for anomalies to help keep air travel safe, and if something needs a closer look, it will receive secondary screening. The key to avoiding bag searches is keeping the clutter down. The less clutter you have in your bag, the less likely it will be searched.

Only electronics the size of a standard laptop or larger (for example Playstation®, Xbox®, or Nintendo®), full-size DVD players, and video cameras that use video cassettes must be removed from their carrying cases and submitted separately for x-ray screening. Removing larger electronics helps us get a better look at them and also allows us to get a better look at the contents of your bag

So with those rules in mind, the 11” model of the MacBook Air is fine to leave in your bag, and the 13” model must be removed prior to X-ray screening. Unless of course you own one of the "Checkpoint friendly" laptop bags... Keep in mind that even though you’ve done everything right, our officers are trained to look for anomalies and the need may arise to take a closer look at your gadget.

I hope this clears things up.

He said that the laptop rule is about appearances, giving people a sense that something is being done to protect them. “Security theater,” he called it.

Kip Hawley doesn’t argue with the specifics of my criticisms, but instead provides anecdotes and asks us to trust that airport security—and the Transportation Security Administration (TSA) in particular—knows what it’s doing.

He wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. He wants us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. He wants us to trust the no-fly list: 21,000 people so dangerous they’re not allowed to fly, yet so innocent they can’t be arrested. He wants us to trust that the deployment of expensive full-body scanners has nothing to do with the fact that the former secretary of homeland security, Michael Chertoff, lobbies for one of the companies that makes them. He wants us to trust that there’s a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that’s really a flashlight with a long cone on top (Dallas/Fort Worth).

At this point, we don’t trust America’s TSA, Britain’s Department for Transport, or airport security in general. We don’t believe they’re acting in the best interests of passengers. We suspect their actions are the result of politicians and government appointees making decisions based on their concerns about the security of their own careers if they don’t act tough on terror, and capitulating to public demands that “something must be done”.

In 2004, the average extra waiting time due to TSA procedures was 19.5 minutes per person. That’s a total economic loss—in –America—of $10 billion per year, more than the TSA’s entire budget. The increased automobile deaths due to people deciding to drive instead of fly is 500 per year. Both of these numbers are for America only, and by themselves demonstrate that post-9/11 airport security has done more harm than good.

The current TSA measures create an even greater harm: loss of liberty. Airports are effectively rights-free zones. Security officers have enormous power over you as a passenger. You have limited rights to refuse a search. Your possessions can be confiscated. You cannot make jokes, or wear clothing, that airport security does not approve of. You cannot travel anonymously. (Remember when we would mock Soviet-style “show me your papers” societies? That we’ve become inured to the very practice is a harm.) And if you’re on a certain secret list, you cannot fly, and you enter a Kafkaesque world where you cannot face your accuser, protest your innocence, clear your name, or even get confirmation from the government that someone, somewhere, has judged you guilty. These police powers would be illegal anywhere but in an airport, and we are all harmed—individually and collectively—by their existence.

On Friday, at the request of the TSA, I was removed from the witness list. The excuse was that I am involved in a lawsuit against the TSA, trying to get them to suspend their full-body scanner program. But it's pretty clear that the TSA is afraid of public testimony on the topic, and especially of being challenged in front of Congress. They want to control the story, and it's easier for them to do that if I'm not sitting next to them pointing out all the holes in their position. Unfortunately, the committee went along with them.