The TSA Vs. The Fourth Amendment: You're Free To Board A Plane, But You're Not Free To Leave The Screening Area

from the exchanging-rights-for-so-called-'privileges' dept

We've often discussed the TSA's ridiculous pantomime deployed with the pretense that vague and ever-shifting rules -- most written as a reaction to previous failed attacks -- somehow make flying safer, even if these policies have failed to prevent attackers from boarding planes or even sniff out potential terrorists in order to apprehend them. The entire process has been ridiculed (as all knee-jerk responses should be) to no end, which is just as well considering the TSA program itself is apparently going to be endless.

While we've examined the security theater players' parts, we really haven't spent much time examining the stage itself. Over at the Volokh Conspiracy, David Post asks just how many of our rights are we supposed to give up for the illusion of safety?

I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said: ”Once you enter the screening area, you will not be permitted to leave without TSA permission.” Really?! Actually, I am permitted to leave without TSA permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely: ”being in custody.” And the government cannot put me in custody when they have absolutely no reason to believe that I have broken the law – the 4th Amendment prohibits that. Nor can they say “you’ve consented to being in custody when you go to the airport,” any more than they can say “you’ve consented to being in custody whenever you leave your home, so we can grab you and hold you whenever we damn please.”
Post's followup discussion with TSA agents didn't add much in the way of clarification. The agents told him that he wasn't free to leave but he certainly wasn't being detained. Not "in custody," but not allowed to exit the screening area -- just one of the many contradictions that defines the TSA's bureaucratic morass.

Orin Kerr has responded in another post, stating that whether or not the "seizure" is "unreasonable," caselaw backs up the TSA's position.
The “right to leave” argument was first litigated in the early 1970s when airport security screening was new. At the time, the Fifth Circuit clearly rejected the argument. See United States v. Skipwith, 482 F.2d 1272, 1277 (5th Cir. 1973). The Fifth Circuit reasoned that an alternative approach would give hijackers a way to probe for poor security practices and then only go through security when it was lax.
The logic behind this opinion is mostly sound, but this is something that should be clarified by the agency relying on this caselaw. When someone asks whether or not they're being detained or are in custody, they should be told that they are -- even if said custody technically ends when they board their flight. This may make more people unhappy, but the TSA's never really been a people-friendly operation.

If there was ever going to be an opportunity to move caselaw to a bit more reasonable point in relation to consent, custody and security checkpoints, that door was slammed shut by the 9/11 attacks. From the Ninth Circuit decision concurring with the Fifth Circuit's 1970s decision:
[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.
In other words, extenuating circumstances, dating back to the 1970s, have turned an airplane ticket into a waiver of Fourth Amendment rights. While I appreciate the fact that restoring these rights would make it much easier for would-be attackers to probe for security holes, the same rationale makes anyone attempting (or asking) to leave the screening area instantly suspicious -- and subject to additional searches and screenings.

This aligns very much with the general law enforcement view on "reasonable suspicion" in terms of checkpoints and roadblocks. Any driver who turns down a side road or performs a U-turn in order to avoid a police checkpoint is presumed to be guilty of… something and therefore should be pursued and stopped. At no point is this driver ever in "custody," and yet, he or she isn't free to leave the area, even when the driver is several cars back in the line. This would seem to violate the Fourth Amendment as well, but courts in many states have determined that simply avoiding a checkpoint is, in itself, enough reasonable suspicion to allow officers to pull over the vehicle.

Other courts have argued that a legal maneuver to avoid a checkpoint is not enough to indicate reasonable suspicion, but the reality here (as lawyers caution) is that drivers avoiding a DUI checkpoint or other police roadblock should expect to be pulled over and questioned. In the end, the only practical difference between these two rulings is the admissibility of evidence in court. At the point where the Fourth Amendment should matter, it doesn't. It's only after the fact.

Although they aren't told explicitly, simply entering the screening area is giving consent to the TSA to search you and your belongings. Should you wish to revoke this consent, you would need to make that decision before reaching the screening area. Practically speaking, this means finding another way to reach your destination. There's no way to assert your rights and still board a plane, even if you haven't broken any laws and aren't planning to.

Caselaw (and some common sense) supports the TSA's claim that travelers are not free to leave the screening area. But the TSA should be honest about it, rather than simply expect all travelers to be perfectly fine with waiving their rights for the "privilege" of boarding a plane. And the courts should be wary of issuing more caselaw supporting the expansion of "constitution-free zones" to anywhere the TSA (or other government agencies) might be operating.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Apr 8th, 2014 @ 9:07am

    It's ridiculous

    I have a friend who accompanied her underage daughter to the gate so she could be with her until she got onto the plane - as she was going through security with her daughter, she realized she had a pocket knife with her (which she didn't think about, since she wasn't flying that day).

    They would not allow her to proceed, or otherwise leave without surrendering the knife.

    They also never indicated that there were alternatives, such as shipping the item home, etc. - she found out about that after the fact.

     

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  2.  
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    Anonymous Coward, Apr 8th, 2014 @ 9:08am

    There's a problem with this reasoning

    "[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks."

    There are a number of issues here.

    First, this reasoning presumes that cost is an issue. And for some terrorists, it probably is. But not all.

    Second, it presumes that terrorists don't already know about "systematic vulnerabilities in airport security". I'm pretty sure that anyone who either (a) flies and thinks or (b) reads is fully aware of a number of such vulnerabilities. ("Existence of TSA checkpoint" is one of my personal favorites.)

    Third, if we grant for the sake of argument that are terrorists who don't know, then they have a plethora of means by which to learn -- and the methodology implied here is one of the least effective therefore unlikely to be deployed. ("sit in overpriced airport restaurant at table behind TSA personnel airing personal gripes" is one. "socially engineer mostly-untrained TSA agent" is another. And of course there are always the Old Ways: bribery, blackmail, seduction, extortion. There's no reason to think that TSA personnel are any more immune to those than anybody else.)

    There's more, but the point I'm trying to make is that the court is advocating for security-by-obscurity, and that never works. A much better approach would be to publish all the details, invite comment from security experts, and pay attention to what they say. Even if they're five years old. (Why, hello, Microsoft.)

     

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  3.  
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    John Fenderson (profile), Apr 8th, 2014 @ 9:18am

    There's a big difference

    The TSA asserts that they can hit you with an $11,000 fine for leaving the screening area once screening has begun. In my view, this is a pretty huge difference from DUI checkpoints. If you avoid a DUI checkpoint, that presents cause for you to be stopped for special attention, but you won't be punished (fined) for simply avoiding the checkpoint.

    Whatever they want to call it, that fine indicates that you are being detained once screening has begun. It is also, in my personal view, the most objectionable part of a highly objectionable system. It means that you are a prisoner.

     

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  4.  
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    Beta (profile), Apr 8th, 2014 @ 9:32am

    probing for lax judges

    A right is not a right if it can be denied on the grounds that it might make crime easier. If this is sound law, then they should have repealed the fourth amendment before the ink was dry.

     

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  5.  
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    Beta (profile), Apr 8th, 2014 @ 9:50am

    Re: There's a problem with this reasoning

    "We must call off the attack. My plan was to carry a gun through security, and abort if I was about to be detected, but now that is impossible."

    "Too bad, and it was so... Wait. You can tell when you're about to be detected?"

    "Yes, I can look at what they're doing and see whether it would be enough to detect my gun."

    "Well, why not do that without the gun?"

    "Because it doesn't do any good to get through security without a gun! Even if I found that security was lax, I'd be on the plane unarmed. Use your head!"

    "But if you find that security is lax, then you can call me and I'll come through after you with the gun."

    "Good heavens... My friend, I'll bet you're smarter than two panels of Circuit Court judges!"

     

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  6.  
    identicon
    Anonymous Coward, Apr 8th, 2014 @ 9:57am

    Re: There's a problem with this reasoning

    Get some sympathizer to become a TSA agent, and they can get the gun/bomb/whatever through security for you.

     

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  7.  
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    My Name Here, Apr 8th, 2014 @ 10:07am

    You got it slightly wrong.

    Although they aren't told explicitly, simply entering the screening area is giving consent to the TSA to search you and your belongings.

    Checking in for the flight and obtaining a boarding pass is pretty much your consent to all that comes after. If you check in and then fail to appear on a flight, you will certainly get checked out especially if you had checked luggage that you apparently tried to get on a flight without you.

    For all the calling this security theater, it's pretty obvious that if you took away the TSA tomorrow and let people fly with anything, any time that you would see planes dropping out of the sky like flies. Terrorists don't want to steal something from you or hold hostages, they just blow the damn thing up and call it a day. Take away the TSA, and commercial aviation in the US is a dead player.

     

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  8.  
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    Rekrul, Apr 8th, 2014 @ 10:08am

    And the courts should be wary of issuing more caselaw supporting the expansion of "constitution-free zones" to anywhere the TSA (or other government agencies) might be operating.

    Why? It's quite clear that the US government would like to make the entire country a Constitution-free zone.

     

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  9.  
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    arkiel (profile), Apr 8th, 2014 @ 10:10am

    Given the amount f resources we've poured into the TSA, making case law based on the abstract intangible element of human competency isn't a sound analysis anymore. Courts need to start acknowledging that airline security might have needed those rules in the 1970s, but now we're throwing billions of dollars and voiding our privacy interests in our own bodies in the name of safety when a corresponding level of danger doesn't actually exist. It's the TSA's entire job to make sure there aren't windows of weak security.

     

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  10.  
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    John Fenderson (profile), Apr 8th, 2014 @ 10:23am

    Re: You got it slightly wrong.

    "it's pretty obvious that if you took away the TSA tomorrow and let people fly with anything, any time that you would see planes dropping out of the sky like flies."

    That's a false dichotomy. Nobody is saying "TSA or nothing at all". How about get rid of the TSA and go back to the security process that was used prior to all this nonsense?

     

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  11.  
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    Pen, Apr 8th, 2014 @ 10:24am

    Re: You got it slightly wrong.

    You honestly believe that? Tell me, does the rest of the world have the same sort of security theater as we do? My European friends say no, and they fly all the time. It's a miracle most of them aren't dead apparently.

     

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  12.  
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    mike, Apr 8th, 2014 @ 11:28am

    I agree with the decision that once you begin the screening process, ie metal detector or par down, you are not free to discountinue it. But anytime prior to that point, you should be free to walk away. Just like a roadside vehicle checkpoint, if you haven't made it to the front of the line, you should be free to leave.

    I also agree with the many people who believe the tsa has a whole is mostly a failure and waste of money. We need security screening at airports, whether it be by private or government personnel. But the current model is ineffective, inefficient, incompetent, and needs to go.

    Instead of adding more money and more personnel to the tsa, we need to focus on revamping the system and devolping one that focuses on safety and security, while being efficient and effective.

     

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  13.  
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    art guerrilla (profile), Apr 8th, 2014 @ 12:00pm

    Re: You got it slightly wrong.

    my name here = authoritarian and/or bot

     

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  14.  
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    That One Guy (profile), Apr 8th, 2014 @ 12:08pm

    Re: You got it slightly wrong.

    For all the calling this security theater, it's pretty obvious that if you took away the TSA tomorrow and let people fly with anything, any time that you would see planes dropping out of the sky like flies.

    Ah yes, I remember the days before the TSA started their 'Grope and Poke' security measures, when planes would have only the slimmest chance to make it to their destination un-exploded, and hijackings were a common occurrence...

    Oh wait, no, my mistake, I'm thinking of some other reality, in this one the level of security we had before the terrorists won and the government starting sacrificing rights on the alter of 'National and Public security' was more than enough to keep the vast majority of planes from going off like fireworks in the sky, so the idea that the TSA is somehow the 'last line of defense' keeping planes from exploding left and right, just doesn't hold up.

    Terrorists don't want to steal something from you or hold hostages, they just blow the damn thing up and call it a day.

    So tell me, how exactly does forming massive groupings of people, for the purpose of 'security screenings' help that? If anything it seems to me such measures would make it easier for terrorists, as now they don't even have to make it through security, any security, to kill huge numbers of people.

     

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  15.  
    identicon
    David, Apr 8th, 2014 @ 1:18pm

    “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, "whether I do good or whether I do evil is immaterial, for innocence itself is no protection," and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
    - John Adams

     

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  16.  
    identicon
    David, Apr 8th, 2014 @ 1:24pm

    Airline Passengers Defend the Plane

    After 9/11 no one on a airplane will allow someone to takeover the plane or attempt to detonate a bomb. Hijacking a plane is no long possible due to the passangers, NOT the TSA.
    T - Terrorist
    S - Searching
    A - Americans

     

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  17.  
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    tracker1 (profile), Apr 8th, 2014 @ 1:45pm

    It's "unreasonable"

    You have the right to be protected from "unreasonable" search and seizure... The argument is being held that these searches are indeed reasonable. No other argument really needs to be made here, and all the legal fumbling by the TSA etc is stupid.

    That said, I personally don't feel that it's reasonable but that is open to interpretation. If there was a sign, when entering that spelled out the TSA's assertions, there would probably be less objection to it.

     

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  18.  
    identicon
    Anonymous Coward, Apr 8th, 2014 @ 1:58pm

    Re: Airline Passengers Defend the Plane

    And locked cockpit doors.

     

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  19.  
    identicon
    Zem, Apr 8th, 2014 @ 2:09pm

    At what point did you all think the TSA was about making YOU safer?

     

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  20.  
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    That One Guy (profile), Apr 8th, 2014 @ 3:14pm

    Re: It's "unreasonable"

    Less objection from the passengers perhaps, but you can bet if anyone tried to put up a sign making it clear that entering the area immediately stripped you of your 4th amendment rights the TSA would immediately demand it taken down or do so themselves.

     

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  21.  
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    art guerrilla (profile), Apr 8th, 2014 @ 4:42pm

    Re:

    what are you ? ? ?
    some sort of, of, of REVOLUTIONARY ? ? ?

    off to the gulag with you, nutjob...

     

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  22.  
    icon
    Coyne Tibbets (profile), Apr 8th, 2014 @ 6:21pm

    Re: probing for lax judges

    If this is sound law, then they should have repealed the fourth amendment before the ink was dry.

    You can be sure the government is working very hard to rectify that oversight.

     

    reply to this | link to this | view in thread ]

  23.  
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    Hibby the Hoovy (profile), Apr 8th, 2014 @ 7:38pm

    Re: Re: You got it slightly wrong.

    That or government-sponsored troll. I remember a few years back one now-derelict blog was plagued by commenters posting messages like My Name Here's, and the owner ran whois on the posters' IP addresses and he found that all of them were connected to DHS.

     

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  24.  
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    Anon, Apr 8th, 2014 @ 7:49pm

    Not sure I understand

    Are you suggesting that once you are in the secured area you cannot leave? I've done that many times. (Long layover in Minneapolis - let's go to Mall of America!)

    Indeed you just follow the deplaning passengers (from domestic flights) and away you go.

    If you are suggesting that once you enter the screening area you should not be allowed to leave until processed - well, that sounds like a reasonable requirement, that you consented to by entering the search area with a boarding pass. Once the screening is complete, you are free to go.

    After all, once you board the plane, you are not free to go either. Once the light comes on you are not free to leave your seat. Life is full of one-way streets.

    I hate to agree with the TSA and its silly theatre, but I don't see this as an onerous burden.

     

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  25.  
    identicon
    my name here, Apr 9th, 2014 @ 12:56am

    Re: Re: You got it slightly wrong.

    Ah yes, I remember the days before the TSA started their 'Grope and Poke' security measures, when planes would have only the slimmest chance to make it to their destination un-exploded, and hijackings were a common occurrence...


    wow, what a load of rubbish. I know it's sort of a Techdirt tradition to try to over state someone's point to make it seem stupid, but do you honestly believe anything you wrote?

    The problem we face is similar to the nuclear genie. Once you know how to harness nuclear (for good or bad) you can't unlearn it. In the same manner, terrorists figured out that airport security before 2001 was a joke, and they used that to great effect. They proved conclusively that anyone could very easily end up in control of aircraft and hurt and kill so many in such a short period of time. We shall never forget it.

    Since then, the genie has really gotten out of the bottle. Those who seek to harm others have learned that they don't need huge WMD to cause great harm, and they came to understand that they could carry that stuff onto a plane on their person in a hard to detect manner, and use that to cause great harm. The show bomber dude is a perfect example, he was a fuckup and couldn't do the duty, but he had enough on him to do serious harm and perhaps take that plane out of the sky.

    how exactly does forming massive groupings of people, for the purpose of 'security screenings' help that?

    It starts by making it harder to get weapons on board, and continues through not generally allowing enough materials on board to cause the issues. It involves checking things and checking ways that the terrorists have shown to use in the past, and keeping them from being viable and reliable vectors for attack.

    As a side note, generally it has also managed to keep most guns, knives, and other day to day dangerous weapons off of commercial flights, making flying quite possibly the safest place to be in the US.

    So reverse the question: If tomorrow the TSA stopped checking your person, stopped checking carry on bags (except for a cursor run though a metal detector) and let people carry on almost anything, would you feel safe to fly?

    Do you remember what it was to fly before 2001? Do you remember what it was like when people could walk with you right to the gate, many without even passing any real security to do it? It's like sending you kid out now to ride a bike without a helmet, it might have been acceptable 40 years ago, but now we know better.

     

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  26.  
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    Jeremy Lyman (profile), Apr 9th, 2014 @ 4:57am

    Re: Re: There's a problem with this reasoning

    Great, now we're not going to be allowed to travel with phones. Thanks for spoiling it for everybody else.

     

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  27.  
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    JarHead (profile), Apr 9th, 2014 @ 5:11am

    Re: Re: Re: You got it slightly wrong.

    So? The only sure way not having any terrorist on board is not having anyone boarding the plane, problem solved case closed. Anything less is the TSA or whatever alphabet-soup.org not doing it's job protecting American people.

    A compromise will be prohibiting anyone carrying anything on his/her person. ANYTHING. So passengers will board the plane buck naked. There's ton of advantages of this rule:

    1. Flying still an option for travel (see above)
    2. The cost of security theater can be significantly reduced, as
    3. Search & grope can be minimized
    4. Scanner use can be minimized
    5. Entertainment value all round, esp when boarding along with supermodels and/or various beautiful people

    I'm amazed why this solution still hasn't enforced yet.

     

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  28.  
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    nasch (profile), Apr 9th, 2014 @ 12:28pm

    Re: Re: Re: You got it slightly wrong.

    So reverse the question: If tomorrow the TSA stopped checking your person, stopped checking carry on bags (except for a cursor run though a metal detector) and let people carry on almost anything, would you feel safe to fly?

    I would, because I don't see any evidence that all this no-liquids-take-off-your-shoes-nude-scanner stuff is actually stopping anything. And it's been proven that it's still quite possible, perhaps even easy, to get weapons past security. And security issues on planes before 9/11 were a microscopically tiny problem. The only reason people are so freaked out about it now is because 9/11 was so horrible, not because it's so much more likely now. Reinforce and lock the cockpit door, use air marshals and metal detectors, and leave it at that.

    Do you remember what it was like when people could walk with you right to the gate

    Yeah, that was nice. Too bad we won't ever see that again. Remember how people could walk their kid to the gate, and grandma and grandpa could pick them up at the gate at the other end? No more of that.

     

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  29.  
    identicon
    Logic Is The Answer, Apr 9th, 2014 @ 7:02pm

    Re: You got it slightly wrong.

    Absolutely valid. You can not play nice when others choose not to play nice. It is a matter of logic to protect ourselves collectively from terrorists. Yes it is a pain however how much more painful would it be screaming as your burnt and battered body is falling in thin air from 30,000 feet. It's time to lighten up on those who are doing a thankless job of protecting us all. And yes I hate being radiated every time I fly and yes I have even suffered humiliation but I will continue to accept minor inconveniences for the sake of my life and my fellows.

     

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  30.  
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    John Fenderson (profile), Apr 10th, 2014 @ 9:06am

    Re: Re: You got it slightly wrong.

    I don't consider a reduction of my rights as a "minor inconvenience". In my opinion, people who accept these measures are the ones making us less safe.

     

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  31.  
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    Sunhawk (profile), Apr 10th, 2014 @ 9:38am

    Re: Re: Re: You got it slightly wrong.

    One measure was sufficient.

    Locking the cockpit door. The point of a hijack is to wrest control of the plane, not to kill the people on the airplane (that's just a bonus - they're going for psychological impact or far more significant kill-count).

    If they wish to kill the number of people on a plane, it's easier (and more effective) to bomb, say... a busy mall. A school. A hotel.

     

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  32.  
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    Sunhawk (profile), Apr 10th, 2014 @ 9:39am

    Re: Re: You got it slightly wrong.

    How cowardly we have become since Patrick Henry's "give me liberty or give me death" and Benjamin Franklin's "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

     

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  33.  
    identicon
    Lisa Simeone, Apr 14th, 2014 @ 3:50am

    Yes, you can leave the checkpoint of your own free will

    The TSA is, as usual, full of sh1t. Yes, you can freely leave the checkpoint once you have entered. Sommer Gentry has done it more than once. She's a professor of mathematics at the U.S. Naval Academy and an articulate, relentless opponent of the TSA's farce.

    She writes for us at TSA News, where I'm the editor. I've the put the URL to one of her posts in the link at my name. Click on it, and you'll get to her essay about walking away from the airport goons.

    There are many ways to fight back against this abusive agency, and we should be using all of them.

     

    reply to this | link to this | view in thread ]

  34.  
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    Lisa Simeone (profile), Apr 14th, 2014 @ 3:58am

    Re: Re: You got it slightly wrong.

    "It's time to lighten up on those who are doing a thankless job of protecting us all."

    No, darlin', it's time to lighten up on the completely irrational belief that there's a terrorist hiding around every corner.

    If you think bullying, robbing, humiliation, and sexual assault are "minor inconveniences," there's something seriously wrong with you.

    And point of logic: in all the years before October 30, 2010, when the Reign of Molestation was implemented, why weren't planes being blown out of the sky left and right? After all, you say the risk of "screaming as your burnt and battered body is falling in thin air from 30,000 feet" is so high. So where were all the terrorist attacks in all those years before the scanners and gropes were implemented? And where are all the attacks at the hundreds of thousands of non-TSA-protected places??

    TSA apologists never want to answer these questions.

     

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  35.  
    identicon
    James T Sparks, Dec 18th, 2014 @ 12:02pm

    TSA

    I wished you will call Mick Mulvaney and explained to him the 4th amendment. I going back and forth with him about the TSA and the 4th amendment. Looked on my FB.

     

    reply to this | link to this | view in thread ]


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