Why air travelers are confused about TSA screening

These are confusing times for airline passengers.

In recent weeks, the government has made two surprising policy changes: First, the Transportation Security Administration announced that screening with a full-body scanner would no longer be optional for some passengers, and then the Department of Homeland Security said that soon your state-issued driver’s license might not be sufficient ID for you to pass through the airport screening area.

The result? Travelers are less certain about the airport screening experience than they’ve been in years.

Despite scattered reports of travelers being required to pass through the TSA’s scanners, the agency insists that there’s only a small chance you’ll be screened by the controversial machines if you don’t want to be. In other words, you can generally still “opt out” and receive what the agency refers to as an enhanced pat-down from an agent. And your state-issued ID will continue to work until 2018, and probably long after that, even if it doesn’t comply with the new federal standards.

The full-body scanners represent the most high-profile public concern. Since the agency assigned to protect America’s transportation systems implemented its new no-opt-out policy Dec. 18, there have been a few media reports of agents insisting that passengers use the scanners.

A passenger with the TSA’s PreCheck designation in Akron, Ohio, complained in a comment on a civil rights blog that she’d been selected for a mandatory scanning. PreCheck is an expedited-screening program that costs $85 for a five-year membership and allows you to bypass the full-body scanners.

“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,” said Tara MacLaren, a marketing consultant who works for a Houston-based software company. “When I tried to opt out, I was told that was no longer an option for those with TSA PreCheck.”

MacLaren reports that she “pushed back,” telling the agents she was pregnant. Only then did the agents relent, allowing her to be screened with a metal detector.

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“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 PreCheck are not eligible for opting out,” she said.

Ann Hobbs, a retired lawyer from Silver Spring, Md., also had a PreCheck notation on her boarding pass when she flew out of Baltimore-Washington International Airport in late December. Initially, she walked through a metal detector. “I was then told to go through the full-body scanner, having been randomly selected,” she says. “This seemed rather odd to me. Why wouldn’t the selection have been made before I went through the metal detector?”

Hobbs says she’s worried about the long-term health effects of the scanners, a technology that she believes has not been adequately tested. “We are the guinea pigs,” she says.

In another incident, a TSA agent in Seattle told a London-based privacy advocate named Sai that he would be required to go through the scanner. A lengthy argument, captured on video and uploaded to YouTube, ensued. Eventually, a manager overruled a supervisor, allowing Sai to undergo a pat-down instead.

The TSA refused to comment on the incidents. A representative said that “generally,” passengers undergoing screening will have the opportunity to decline being screened by a full-body scanner. “However, some passengers will be required to undergo screening [with a scanner] if their boarding pass indicates that they have been selected for enhanced screening,” said Bruce Anderson, a TSA spokesman.

It remains unclear how someone might be selected for mandatory full-body screening. When I flew from San Antonio to Orlando recently, an agent told me that only travelers in the Terrorist Screening Database, a registry of more than 1 million names, would be required to go through the machine. But other passengers are also being randomly sent through the scanners, notably air travelers with PreCheck privileges.

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The random selection process can work both ways. In Orlando on a busy Monday, I witnessed an agent allowing four passengers at a time to skip the full-body scanners and get screened by a metal detector, an apparent effort to reduce wait times.

Passenger advocates don’t like the scanners because they say they were deployed without giving the public a chance to comment, a process required by federal law. They claim the devices violate the Fourth Amendment right to protection from unreasonable searches and seizures. And they believe the scanners have not been adequately tested and may present health risks.

Adding to the uncertainty is the possibility that Congress could act soon to rein in the TSA. An influential coalition of civil rights groups, including the American Civil Liberties Union, the Consumer Federation of America and the Electronic Frontier Foundation, recently sent a letter to Rep. Jason Chaffetz (R-Utah), chairman of the Committee on Oversight and Government Reform, asking him to take immediate action to stop the scans. They demanded that the government suspend funding for full-body scanners until a public rulemaking process has been completed and that the TSA evaluate the cost, including lost time to passengers, of screening procedures using full-body scanners.

As if that’s not enough, the DHS on Jan. 8 also announced the “final” implementation of the REAL ID Act. The law established minimum security standards for the issuance of sources of identification, such as driver’s licenses, and prohibited federal agencies from accepting for certain purposes driver’s licenses and ID cards from states not meeting the act’s minimum standards.

Soon, air travelers with a driver’s license or ID card issued by a state that doesn’t meet the requirements of the act will have to present an alternative form of identification, such as a passport, to board a domestic commercial flight.

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Although the deadline isn’t for another two years — Jan. 22, 2018, to be exact — travelers are nervous about their IDs not working. Only 23 states (including the District and Maryland) are compliant or certified as making progress toward being compliant with the REAL ID Act. Another 27 states and territories (including Virginia) have been granted extensions. Six states and territories — Illinois, Minnesota, Missouri, New Mexico, Washington and American Samoa — are noncompliant and do not currently have extensions.

“It gives the states that want to be compliant — and there are only a few that aren’t — time to either adopt or figure out an alternative before the deadline,” says Jeffrey Price, author of “Practical Aviation Security: Predicting and Preventing Future Threats.”

The actual deadline for REAL ID won’t come until at least Oct. 1, 2020, when every air traveler will need a REAL ID-compliant license or another acceptable form of identification for domestic air travel.

But that is by no means a hard deadline, according to author and consumer advocate Edward Hasbrouck. He says the ambiguous scanning rules and the national ID requirements amount to an overreach of the TSA’s authority. The government’s recent actions are not only baffling to air travelers, he says, but they also violate an American legal right to freedom of transit through the navigable airspace.

“If the government tries to carry out its latest threats to harass, delay or prevent people without an ID it deems acceptable from flying, those actions are certain to be challenged in court and likely to be overturned as unconstitutional,” Hasbrouck says.

In other words, air travel may be about to get even more confusing.

TSA's changes in screening make me feel:

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Christopher Elliott

Christopher Elliott is an author, journalist and consumer advocate. You can read more about him on his personal website or check out his adventures on his family adventure travel site. Contact him at chris@elliott.org. Read more of Christopher's articles here.

  • CommonSense

    Hasbrouk says: ““If the government tries to carry out its latest threats to harass, delay or prevent people without an ID it deems acceptable from flying…” Dude, this comment has ALWAYS been true. You can’t fly without a gov’t issued ID now, so that constitutes “acceptable.” BTW, flying is not a guaranteed constitutional right, so if you don’t like it…walk.

  • sirwired

    I think the scanners are silly and ineffective, but enough with the vague allusions to undetermined health risks.

    There is simply NO plausible mechanism for the scanners to be dangerous. (At least, no more dangerous, radio-wave wise, than your cell phone, the flight itself, and a bazillion other everyday exposures to the electromagnetic spectrum.)

    It is impossible to “prove” ANYTHING safe. And since that’s true, we have science to fall back on, which says that there is NOTHING special about the scanners that you are not exposed to in much greater quantity all. the. time.

  • Jim Zakany

    Flying exposes a person to much higher radiation doses than the scanners employ.

  • Tom McShane

    And if they have a bad leg, I guess they should crawl, or limp, if they are lucky.

  • James

    I knoiw people who have flown without government ID, including once, me — had a wallet stolen with the only photo ID before reaching the airport. All I had to do was sign an affidavit that I was who I was.

  • James

    Which, of course, means that one should not worry about cumulative doses.

  • James

    There is simply NO plausible mechanism for the scanners to be dangerous.

    Stand next to one in a major earthquake and have it fall over on you. Not dangerous. Or is it implausible for them to be toppled in a major earthquake?

    Unlike any medical equipment, the scanners are not certified safe by the FDA.

  • Regina Litman

    Ah, a nostalgic Sunday. Just like about 4 years ago, when elliott.org had only one column a day, and Sunday’s was focused on the TSA. I wasn’t that interested in this topic, so I usually skipped the site on Sundays. I see that I could have skipped it today, too. Only one new column, and it’s about the TSA. See you on Monday!

  • Barthel

    Just do as you’re told, go through the process and get on the plane.

  • Sai

    FWIW: more info on my cases cited in article, @ https://s.ai/tsa/legal/46110 & https://s.ai/tsa/legal/sea

  • Sai

    1. Current scanners are not xray, they’re MMW. It’s not been proven safe or unsafe.
    2. Yes it is possible to prove safety, to within desired tolerance. Test vs control group, see how much worse the test is after multiple comparisons correction etc. Comes with inherent margin of error. If that MOE is acceptable, you’re done. If it isn’t, you should’ve picked a bigger sample.
    3. Others do have health based objections. I mainly do not. My objections are Constitutional.

  • Sai

    Please tell me how I can walk from Seattle to London.

  • Jadeveon Clowney

    I don’t understand. You commented. Therefore, you didn’t skip it.

  • Grant Ritchie

    Paging “Jesus… ocean for one.” :-)

  • Grant Ritchie

    I like you, Sai. People like you keep the country freer (more free?) for the rest of us. Hang in there, buddy!

  • Susan Richart

    Actually, you CAN fly without a government issued ID; happens every single day.

  • Susan Richart

    It’s a “process” that does NOTHING to improve safety. As a matter of fact, TSA screeners are charged with looking for so much “contraband” that the whole process actually makes us less safe.

  • John McDonald

    the TSA is useless & a total waste of time & money.
    That said, if you use smaller airports, TSA (& everyone else) is far less stressed.

  • sirwired

    1) I’m not sure what you are getting at. I do realize the current scanners are MMW.
    2) A desired tolerance for what? Test what vs. a control group? Worse than what? Margin of what?
    3) That’s nice. I wasn’t addressing the constitutional concerns which indeed are substantial. I was addressing the vague hand-waving towards either nebulous or scientifically-ignorant health concerns that often get mentioned in anti-scanner articles, like this one.

  • Sai

    Tolerance in the stats sense, i.e. margin of error in disproving the null hypothesis when comparing the test group with the control group. Test group in this case is “people who get scanned with the machine”, control is “people who don’t”. “Worse” on whatever health outcomes you’re trying to track, e.g. cancer.

    You always have a margin of error. A negative result, technically, is “we could not prove that X+Y, compared to X, has different effect Z of at least A magnitude (equivalent: to at least B certainty).”

    So for instance, it is possible to prove that backscatter AIT machines do not cause everyone who goes through them to grow a third arm, to a margin of error of roughly 1 in 5 billion. ;)

  • Sai

    Quipping from my court filing:

    “The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles, 357 US 116, 125 (1958) (citing fundamental right to travel dating back to the Magna Carta).

    The right to international travel, as Petitioner is about to undertake, is also clearly established in US law. D eNieva v. Reyes, 966 F. 2d 480, 485 (9th Cir. 1992). It is further mandated by binding international treaties. See U .N. Universal Declaration of Human Rights, art. 13; I nternational Covenant on Civil and Political Rights, art. 12; and U.N. Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc C CPR/C/21/Rev.1/Add.9 (1999).

    Respondent purports, opp. p. 11, that Petitioner “can choose to travel by other means such as automobile, bus, or train.” Even if that somehow undermined Petitioner’s statutory right as a US citizen to travel by air in particular, 49 U.S. Code § 40103(a)(2), and to be free of hindrance in travel in general, s upra, Petitioner is unaware of any automobile, bus, or train that would permit travel across the Atlantic Ocean, as Petitioner is about to do.

    Moreover, Respondent’s current policy states that “an individual and his or her property may be selected for more than one search activity prior to boarding an aircraft, b us, train, or other public conveyance. ” TSA Management Directive 100.4, Transportation Security Searches (rev. September 1, 2009), p. 6 & 9 (emphasis added). See attached.

    This directly contradicts Respondent’s claim that “travel by … bus or train” would avoid TSA’s ever-­widening claim of jurisdiction, to the point of deliberately misleading this Court.

  • C Schwartz

    Take a boat or a private plane.

  • C Schwartz

    You are missing one of the key aspects of the Kent case — “If a citizen’s liberty to travel is to be
    regulated, it must be pursuant to the lawmaking functions of Congress,
    any delegation of the power must be subject to adequate standards, and
    such delegated authority will be narrowly construed. P. 357 U. S. 129.” Congress gave the TSA the power.

  • C Schwartz

    But I have to ask what do you suggest as the alternative? Going back to the previous system of the minimum wage private security people that were too busy talking to each other to pay any attention? I do not even want to think about what I got through with those people.

  • John McDonald

    alternative ?
    Why do you think you even need the TSA ? You’ve been conned.

  • Sai

    1. More useful cite form is “357 US 116, 129” — makes it easier to look up the case.

    2. Did you read the context? SCOTUS said that the rule in question was ultra vires. As you quoted, it must be “narrowly construed”. Congress did not give TSA any power to prohibit air travel (nor could they legally do os) — only to screen for WEI.

    I have no objection to WEI screening that is “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons and explosives”, US v. Davis. But TSA acts far beyond that, and in so doing it exceeds its authority.

    You seem to think that any delegation of agency authority means the agency suddenly has total discretion over the thing regulated. That ain’t so.

  • Sai

    I can’t afford either, and anyway a boat is not a realistically viable alternative. (There aren’t even real passenger sea transports any more. Cruise ships an cargo freighters don’t count.)

    Also, TSA says it is expanding its reach to bus, train, and all other public conveyances. Which would presumably include boats. (I don’t know about private planes, but what reasonable person can afford a private cross-atlantic flight?)

  • hearsetrax

    I’ve said it b4 and I’ll say it again :

    “the TSA is living proof that the terrorists have already won the PSYOPS war” …
    no need to hunt for demons, the demon is being a human of any kind

  • KanExplore

    TSA has reached far beyond the power that Congress granted it. Congress needs to reign it in, or better yet, rework the whole security apparatus.

  • Extramail

    And, can vote without ID also. I don’t know which situation is “scarier.”

  • NotThatBrooklynGuy

    And for instances of the police not really caring about what the law is, watch the evening news most any day. Yes, I know the TSA is not a police force.

  • JimLoomis

    I believe the pregnant lady has it backwards. She refuses to submit to the full-body scanner because she’s pregnant, but those machines do not “see” beyond the surface. The metal detectors penetrate the body, as anyone like me with a titanium knee knows. I try to avoid the ordinary machines because my titanium knee sets off all the bells and whistles and a lengthy pat down invariably comes next.

  • JimLoomis

    Also, as a Hawaii resident for more than 50 years, flying is my only option. But, barring any emergency circumstance, I fly to a west coast city and continue from there to my mainland destination in an Amtrak sleeping car. Relaxing, comfortable, thoroughly enjoyable and, while the internet is usually unavailable, I can still get a lot of work done en route. And there is no TSA!

  • Extramail

    And, yet, not a single thing has happened in the air, except for the bomb that was put on the plane by a “worker” and not a passenger. TSA is the theatre of the absurd turning us into sheeple. I trust my fellow passengers much more than I trust TSA.

  • just me

    @CommonSense – really? – “flying is not a guaranteed constitutional right” — do you have any legal support for that claim?
    To support your statement you need rullings negating:
    (1) explicit Federal law (“the public right of freedom of transit through the navigable airspace,” 49 US Code §40101);
    (2) the Bill of Rights (“the right of the people… peaceably to assemble,” US Constitution, Amendment 1);
    (3) international human rights treaty to which the USA is a party (this means it became the law of USA on the highest level) (“Everyone lawfully within the territory of a State [i.a. a country that is a party to the ICCPR] shall, within that territory, have the right to liberty of movement,” ICCPR, Article 12, Paragraph 3).

    Show me please.

  • Stephen0118

    My experience with the full-body scanner is that it marks a keloid as suspicious. I have several on my chest and it always shows up. The agent will then have to pat me down on the chest to make sure I don’t have anything.

  • Cromulently_Embiggened

    What’s going to happen to people with insulin pumps. Most of the major pump manufactures still say to not go through the body scanners with the pump on and the pumps can’t be sent through the x-ray either. I changed manufacturers last year and the new one does say it is ok to go through the scanners. Of course the last time I flew, the TSA was screening everybody the same way as they do for PreCheck. The scanners were all roped off.

  • Mundane Lustrator

    But they can be just as sarcastic and rude (thinking they are big fish in a little pond)

  • Mundane Lustrator

    TSA employees often ignore travellers and talk amongst themselves

  • Mundane Lustrator

    The MMW machines have many levels of scanning and there is no way to know if or when they were calibrated. I don’t personally think they are dangerous, except to our privacy and taxes.

  • Mundane Lustrator

    I’m so sorry. The scanners saw a small fold of cloth as terrorism not too long ago, and a TSA employee rubbed my back. Still grosses me out.

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