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.

“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.

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.

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.

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