airports – Techdirt (original) (raw)

The DOJ Finally Decides There’s Something Wrong With The DEA’s Cash Grabs At Airports

from the drug-warriors-will-need-to-be-a-little-less-obvious-from-now-on dept

Civil asset forfeiture has never been about dismantling criminal operations. It has always been about immediately enriching those who directly benefit from every dollar seized under the pretense that taking cash away from random people somehow cripples multi-national drug operations that have both the personnel and the cash on hand to survive these small-ish seizures.

The DEA (Drug Enforcement Administration) is an opportunist. It actually pays TSA (Transportation Security Administration) agents to search bags for cash, treating each discovery as evidence of criminal activity without being burdened with actually having to prove the seized cash was obtained via illegal transactions.

That’s why the DEA regularly scans airline databases in hopes of finding people traveling in to or out of international airports who might be carrying a little extra cash. That’s why TSA agents are earning quasi-bonuses by scanning luggage for cash, rather than for explosives or actual contraband. That’s why the DHS simply ignores these abuses of power, even when it’s clear taking cash from travelers has absolutely zero net positive effect on travel and/or public safety.

Unfortunately, no federal court will convict, so to speak. This continuous taking of cash from travelers has yet to be ruled a constitutional violation. Neither have the underlying programs that enable this. Courts have, for the most part, found little reason to prevent law enforcement from taking money from people just because they can.

Now that it’s far too late to matter, the Department of Justice has issued a memo criticizing the DEA’s airline passenger-targeting civil asset forfeiture program. Arriving at the tail end of the Biden Administration, there can be little doubt this guidance will be rolled back and any criticisms disavowed once Donald Trump takes office for a second time.

For whatever it’s worth (and for how long), at least this exists for the meantime. Here’s the opening of the DOJ’s memo [PDF] addressing DEA cash seizures at US airports. (h/t C.J. Ciaramella at Reason)

The purpose of this memorandum is to bring to your immediate attention serious concerns identified by the U.S. Department of Justice (Department, DOJ) Office of the Inspector General (OIG) during our ongoing oversight of the Drug Enforcement Administration’s (DEA) transportation interdiction activities.

[…]

The OIG recently identified that, during its transportation interdiction activities, the DEA was not complying with its own policy on consensual encounters conducted at mass transportation facilities, resulting in personnel creating potentially significant operational and legal risks. Specifically, the DEA was not complying with DEA policy to complete the DEA-177 Consensual Encounter Form (DEA-177 form) for each consensual encounter, despite prior DEA representations to the OIG that the DEA was doing so. Additionally, the DEA was not ensuring that all DEA task force personnel complete interdiction training required by DEA policy, despite the DEA’s prior representations to the OIG that the DEA would do so, resulting in personnel conducting interdiction activities at transportation facilities without first receiving the required training.

While this is a positive development, it’s pretty much useless — both because of what it says and the likelihood it will be rolled back by the incoming head of the DOJ, whoever that might be. The OIG has “concerns,” but its concerns don’t deal with the DEA deliberately targeting travelers they think may be carrying cash it can claim for itself. Instead, it’s much more concerned about DEA agents’ failure to pencil-whip the required forms before stealing cash from travelers it can’t be bothered to actually bring criminal charges against. All this means is DEA agents — at least temporarily — will spend a bit more time on paperwork following dubious cash seizures.

If nothing else, though, the memo has at least resulted in a temporary termination of DEA theft.

On November 12, 2024, after receiving a draft of this Management Advisory Memorandum (MAM), the Deputy Attorney General issued a directive to the DEA to suspend conducting, pending an assessment and evaluation, all consensual encounters at mass transportation facilities unless they are either connected to an existing investigation or approved by the DEA Administrator based on exigent circumstances.

That’s better, but all it does is terminate “consensual” encounters, which are “encounters” in which DEA agents roll up on a traveler and try to intimidate them into “consenting” to a warrantless search of their baggage. Given the extremely minimal requirements attached to “reasonable suspicion,” especially in terms of international travel, non-consensual encounters have likely increased to match any (small) reduction in “consensual” encounters.

There’s more detailed in this memo that shows just how desperately the DEA wants to turn airports into a perpetual revenue stream. Not only is the DEA funneling money to TSA agents, but it’s also converting airline employees into “confidential sources” just so it can be given access to travel records and any other personal/financial information obtained by airlines when selling tickets to US citizens. The OIG says this program (if it even can be called a “program”) has been handled sloppily (intentionally) with very little vetting or supervision of airline confidential sources who still continued to get paid, even if their contribution hasn’t resulted in the arrest of criminals or recovery of actual contraband. (Carrying cash isn’t illegal. Some reporting requirements are mandated when leaving the country, but domestic passengers aren’t subject to federal cash reporting requirements.)

The DEA’s efforts in US airports amount to bounty programs that pay (untrained and un-vetted) airline employees to provide targets for “consensual” encounters meant solely to discover cash to seize.

[W]e learned of a DEA office that has a Limited Use CS, who is an employee of a commercial airline, and has for several years been paying the CS a percentage of forfeited cash seized by the DEA office from passengers at the local airport when the seizure resulted from information the CS had provided to the DEA.

In one particular case involving this Confidential Source (CS), the DEA received “tips” on five passengers who had bought their tickets within 48 hours of departure. The DEA ran all the names against criminal databases and the search came up empty. Nevertheless, the DEA sent agents to coerce these passengers into “consensual” searches. As the OIG notes, this means the DEA did not have the requisite reasonable suspicion to initiate these encounters.

One of the passengers accosted as a result of this airline employee’s tip recorded the encounter, which ended with the DEA telling him he could continue to travel but leave his bag behind if he did not consent to a search. A search (one that involved a drug dog “alerting”) recovered no drugs, no cash, and no contraband. The recording of this incident was made public by the person searched (who also missed their flight because of the DEA). The OIG points out the paperwork that was supposed to accompany the documentation of this encounter never managed to materialize until after the recording had been made public by the person they stopped and searched.

The records that the OIG was able to view show this airline employee has been paid handsomely for their dubious contribution to public safety. But whether or not they’re actually worth the money they’re being paid is still a mystery, because the DEA refuses to do the mandated paperwork for each encounter, presumably because it doesn’t want to create a permanent record of its false positives.

The OIG’s review of DEA records revealed that the CS who provided the information to the DEA task force that day has received tens of thousands of dollars from the DEA over the past several years for seizures resulting from information the CS provided of travelers with tickets purchased within 48 hours of their flight. We are unable to determine the total number of travelers the DEA has searched over the years as a result of information provided by the CS, or the number who have refused to be searched following consensual encounters with the DEA at the local airport, because the DEA office in question kept records of such interactions only when they resulted in a seizure of money or contraband.

On the micro level, there’s the stuff listed above. On the macro level, there’s the fact that the DEA engages in biased policing. While cash is the primary focus, the secondary focus appears to be on travelers who just aren’t white enough to be trusted to board airplanes without some additional hassling. Of course, the DEA doesn’t want the public or its oversight to know this, so agents — yet again — ignore mandates and policies to avoid creating a paper trail.

Additionally, the DEA Office of Training’s review found that the DEA-177 form was not consistently applied by personnel conducting transportation interdiction and that “unknown” was often selected in the required “perceived race, ethnicity, and gender of individual encountered” field to avoid the perception of bias. Further, the Office of Training found that the Jetway training program had no consolidated DEA headquarters senior leadership oversight and that the program did not align with DEA training policies or instructor-vetting practices.

Which is all intentional. The DEA doesn’t want oversight asking too many questions. It doesn’t want to create records that might end up in the hands of the public. And it certainly doesn’t want anything to interrupt this steady flow of cash — a never-ending stream of unearned income that has done absolutely nothing meaningful to interrupt the international drug trade. The DEA wants free money and the latitude to harass minorities, even if that harassment is ultimately nothing more than cruelty for its own sake. This memo exposes the problems, but the DEA has no interest in solving them. And it’s extremely unlikely the next person running the DOJ will have any interest in maintaining the very comfortable guardrails this OIG report proposes.

Filed Under: 4th amendment, 5th amendment, airports, asset forfeiture, civil asset fofeiture, dea, doj, legalized theft, tsa

Dumb GOP Propaganda Long Ago Conflated Essential Infrastructure With ‘Socialism’

from the absolutely-everything-I-don't-like-is-radical-socialism dept

Thu, Oct 13th 2022 05:18am - Karl Bode

There’s a routine assumption that U.S. partisan division is something that’s just inherent in the American DNA. In reality, the nation’s divisions are routinely and intentionally cultivated and encouraged by powerful and wealthy individuals and corporations to stall consensus and reform. Both parties are culpable, though it’s the GOP that has perfected the tactic as an art form.

Take broadband for example. A bipartisan majority of Americans hate Comcast or their local cable company and support any efforts to challenge that monopoly power. But any time anybody attempts to do absolutely anything to challenge that power you’ll notice a lot of rhetoric about how those efforts are “socialism,” “government run amok,” or “radically partisan.”

It doesn’t matter what we’re doing to hold telecom monopolies accountable. It could be encouraging net neutrality, blocking problematic mergers, holding AT&T accountable for fraud… it’s all very quickly framed through a partisan lens despite the fact it’s not at all actually partisan, and a significant bipartisan majority of Americans support the efforts to try something smarter and better.

The same dumb gamesmanship infects our national conversations about improving our failing infrastructure. Everybody wants their roads, bridges, airports, and utilities to function well, but key corporations often aren’t as keen. Comcast doesn’t want increased broadband competition. Oil giants don’t much care for solar power. The auto industry doesn’t much care for mass transit.

So again, they infect the discourse with claims that absolutely any effort to try and improve anything is somehow radically political. Corporate giants (see again AT&T and Comcast) prey on partisan disdain for taxation (despite they themselves being a massive beneficiary of wasteful taxpayer subsidization). They suggest that policies common across the world are themselves somehow partisan and radical.

And it almost always works, and has worked for the better part of fifty years. The GOP in particular has long been a useful marionette in this little game we play, and did so once again in the wake of the infrastructure bill — using partisan division to sow disdain among their base, while simultaneously taking credit for the very real improvements the bill will bring to the everyday lives of their constituents.

From Ted Cruz to Ron DeSantis, a vast majority of the GOP opposed and maligned the bill, then turned right around and took direct credit with their constituents for the benefits the bills created. In this way, they get to have their cake and eat it too; they get to rile up their base with sordid tales of radical “left wing” government policy (like, gasp, essential bridge repair), yet simultaneously benefit from the very obvious benefits the legislation transferred to real Americans.

It’s idiotic but effective artifice. The GOP didn’t just vote against the Infrastructure Investment and Jobs Act, they used its passage to malign their political opponents, rile up the base, agitate and distract the public, and generally urinate in the discourse pool. Then they turned right around and wrote letters begging the Biden administration for their share of the essential funding for key projects:

Arizona Rep. Paul Gosar, a leading Biden critic who explained his vote against what he called a “phony” infrastructure bill by issuing a statement that “this bill only serves to advance the America Last’s socialist agenda, while completely lacking fiscal responsibility,” wrote three separate letters between March and July advocating for projects in his district. They’d enhance quality of life, Gosar wrote. They’d ease congestion and boost the economy. They’d alleviate bottlenecks and improve rural living conditions.

On one hand, their covert approval of the infrastructure bills still result in better outcomes for the constituents (the broadband bill alone is going to deliver more than $50 billion in improved service across the country). But the bad faith bullshit employed with the other hand creates untold damage in terms of trust in government, belief in policy, and any effort to actually get anything done.

It’s all an extension of the propaganda and culture war gibberish that has become a cornerstone of GOP power. All promoted by a AM radio/Fox News/Sinclair/YouTube propaganda apparatus it took the GOP and major corporations the better part of the last forty years to build. That, in turn, is an extension of corporate power, and its entire function is to agitate the public, sow distrust, and erode meaningful consensus and reform on the most foundational of issues that actually have widespread support.

And you see its “success” absolutely everywhere you look in policy. To the point where words like “socialism” have lost all coherent meaning. What you won’t see as much of are intelligent solutions to any of it. In large part because the dysfunction remains immensely profitable.

Filed Under: airports, broadband, disinformation, hypcorisy, infrastructure, mass transit, propaganda, socialism

Airline CEOs Freak Out Over 5G Despite Limited Evidence Of Real World Harm

from the everybody-take-it-easy dept

Thu, Jan 20th 2022 06:28am - Karl Bode

We’d already noted that the FAA had been pushing to impose limits on 5G deployments in certain bands due to safety concerns. The problem: the FCC, the agency with the expertise in spectrum interference, has repeatedly stated those concerns are unfounded based on the FCC’s own research. The whole feud has been fairly bizarre, with the FAA refusing to transparently “show its math” at several points, but taking the time to leak its scary claims to select press outlets.

More specifically: the FAA (and a big chunk of the airline industry) claims that deploying 5G in the 3.7 to 3.98 GHz “C-Band” will cause interference with certain radio altimeters. But the FCC has shown that more than 40 countries have deployed 5G in this band with no evidence of harm if you implement some fairly basic safety precautions (like limiting deployments immediately around airports, and utilizing a 220 MHz guard band that will remain unused as a buffer to prevent this theoretical interference).

The FCC says there’s not actually a problem here. And the wireless industry, having spent billions of dollars on middle band spectrum, obviously wants to move forward with deployment. Especially given criticism that U.S. 5G underperforms many overseas deployments thanks to a dearth of middleband spectrum. The U.S. has deployed substantial low band 5G spectrum (great range, lower speeds), and high band millimeter wave spectrum (poor range, poor building penetration, great speeds), but unlike many nations overseas, not much middle band (both good speeds and good range).

The whole C-band mess escalated significantly this week after the CEOs of several major airlines issued a public letter effectively proclaiming their businesses would grind to a halt if wireless carriers continue to deploy 5G in these spectrum ranges:

“The aviation industry faces ?catastrophic? disruption from the rollout of a new 5G service this week, airline leaders have warned. In a letter sent Monday to United States transportation and economic officials and obtained by NBC News, the CEOs of major carriers said that the launch could ground flights and leave “tens of thousands of Americans” stranded overseas.”

To be clear, evidence of actual harm here remains hard to come by. The FAA’s own recent memos (pdf) stated there was no “proven reports of harmful interference” with C-Band 5G deployments anywhere in the world. And wireless spectrum policy experts tell me there’s been absolutely no new studies that would justify this level of renewed freaking out by airline CEOs:

“We have seen no new evidence of anything,? Feld told Motherboard. ?No new studies. No lists of altimeter equipment with their sensitivity to potential harmful interference.”

When issues have popped up, they’ve proven relatively trivial to mitigate around the world. U.S. Wireless carriers have already agreed to limit deployment around at least 50 U.S. airports to reduce the chance of interference, and had agreed to a short delay to study harm before this week’s deployment. After some initial squabbling between the FCC and FAA, all sides seemed to have basically struck a deal on U.S. 5G deployment in these bands, including that 200Mhz buffer (double what companies like Boeing recommended) to further limit potential harm.

But the real reason for the chaos isn’t the actual interference. Some analysts suggest that, as usual, money is playing a role, and that the FAA, tightly wound up with the companies it regulates, wants to push the cost of any mitigation measures off to wireless carriers.

But Consumer groups, FCC sources, and wireless carriers all tell me the real problem is FAA procrastination, hubris and incompetence. Consumer groups and AT&T rarely agree on anything, but they both agree that the FAA didn’t respect the expertise of the FCC (who again already studied this problem before the C-band auction and found little need for concern), wasn’t willing to offer transparent evidence of their interference claims, didn’t bring any of its concerns up years ago during the investigation process, and has lagged on both certifying altimeters it deems safe to use around C-Band 5G–and setting up flight restrictions for planes that have altimeters that don’t qualify as safe under FAA guidance. AT&T was fairly blunt:

So it’s not really clear why the CEOs of major airlines have dropped a doomsday-esque letter like this into the mix this late in the game (literally a day before initial deployments), given what little safety issues that do exist have already been addressed by the FCC and others. Just like it wasn’t really clear why the FAA didn’t want to listen to the FCC when it said there wasn’t really an issue here that couldn’t be easily mitigated. Especially given this same technology has already been deployed in more than 40 countries (in some cases, like Japan, even closer to spectrum ranges used by avionics equipment) with absolutely no evidence of harm. There’s being adequately cautious out of respect for human safety, and then there’s just being difficult.

Filed Under: 5g, airlines, airplanes, airports, faa, fcc, interference

FOIA Documents Detail DHS/CBP's Rules-Free Rollout Of Biometric Scanning Program

from the where-we're-going-we-don't-need-rules dept

The push is on to implement biometric screening at major US airports. The DHS has been pushing this for awhile, telling concerned travelers all they need to do to opt out is not travel. The pilot programs don’t seem to have produced anything in the way of actionable results, but the administration’s insistence that the US is surrounded by terrorists has dropped a lead foot on the DHS’s gas pedal, resulting in an accelerated process that ignores both concerns about biometric scanning tech and the concerns of the traveling public that will be subjected to it.

EPIC’s numerous FOIAs have resulted in an impressive stash of documents detailing the DHS’s biometric scanning surge.

According to 346 pages of documents obtained by the nonprofit research organization Electronic Privacy Information Center — shared exclusively with BuzzFeed News and made public on Monday as part of Sunshine Week — US Customs and Border Protection is scrambling to implement this “biometric entry-exit system,” with the goal of using facial recognition technology on travelers aboard 16,300 flights per week — or more than 100 million passengers traveling on international flights out of the United States — in as little as two years, to meet Trump’s accelerated timeline for a biometric system that had initially been signed into law by the Obama administration. This, despite questionable biometric confirmation rates and few, if any, legal guardrails.

The documents contain little that suggests the DHS will be addressing the numerous concerns that have resulted from its biometric scanning rollout. Nothing delivered by the CBP shows any limits placed on partnerships with the private companies supplying the tech, including their use of the wealth of data supplied by travelers. Data-sharing appears to be part of the CBP’s plan, and there’s nothing in the paperwork suggesting the government will deter private companies from exploiting the biometric data their scanners collect.

What little the CBP did have to say about its biometric scanning program is that it’s definitely going to happen and it’s definitely going to keep expanding. And it’s going to do this under the cover of darkness as the CBP moves forward with the program it sells as a “convenience for travelers.”

The documents also suggest that CBP skipped portions of a critical “rulemaking process,” which requires the agency to solicit public feedback before adopting technology intended to be broadly used on civilians, something privacy advocates back up.

Minimal oversight meets minimal transparency. It’s the sort of officious brushoff we’ve come to expect from terrorism-related government programs. The less the public knows, the less likely it is to express its concerns in actionable ways. The rollout also has the advantage of operating in a legal vacuum. There’s not a lot of casework on the suspicionless gathering of biometric data. It could be argued someone’s face has no privacy expectations when it’s being worn out in public, but it doesn’t necessarily follow that the government should be able to collect this data en masse and hold onto it for an indefinite period of time.

So far, data shows facial recognition tech isn’t the miracle proponents believe it is. Deployed systems have tended to produce a large number of false positives. And if they’re kicking out false positives on a regular basis, they’re also likely missing the people the systems are supposed to identify and remove from circulation. The government’s refusal to discuss the limitations and use of this tech publicly only adds to the problem. The public’s best source of info comes from documents sued out of the agency’s hands. Forced transparency isn’t really transparency.

Filed Under: airports, biometric scanning, cbp, dhs, facial recognition, homeland security, surveillance, travel

DHS's New Airport Face-Scanning Program Is Expensive, Flawed, And Illegal

from the 3-out-of-3.-nice-job,-fellas. dept

We, the people, are going to shell out $1 billion for the DHS to scan our faces into possibly illegal biometric systems. Those are the conclusions reached by the Georgetown Law Center on Privacy and Technology. A close examination the face scanning system the DHS plans to shove in front of passengers of international flights shows it to be a waste of money with limited utility.

DHS’ biometric exit program… stands on shaky legal ground. Congress has repeatedly ordered the collection of biometrics from foreign nationals at the border, but has never clearly authorized the border collection of biometrics from American citizens using face recognition technology. Without explicit authorization, DHS should not be scanning the faces of Americans as they depart on international flights—but DHS is doing it anyway. DHS also is failing to comply with a federal law requiring it to conduct a rulemaking process to implement the airport face scanning program—a process that DHS has not even started.

But American citizens will be included, according to the DHS. Its response to US travelers’ wondering why they’re being treated like terrorism suspects is that they’re welcome to opt out of the collection. All they have to do is not fly. The DHS insists it’s only targeting foreign visitors, but the system will scan everyone. The agency also promises not to retain face scans of US citizens, but it’s highly doubtful it will keep that promise. The government has rolled out a variety of biometric collections, each one intermingled with existing law enforcement and terrorism databases. Collect it all and let the courts sort it out: that’s the government’s motto.

On top of the illegality and lack of proper deployment paperwork, there’s the fact the program really just doesn’t do anything useful. As the Center points out in its thorough report, there was originally a point to scanning incoming foreign visitors and comparing them to government databases: catching incoming criminals and members of terrorism watchlists. But there’s no solid rationale behind the push to scan faces of foreigners as they leave the country.

The DHS has a theory, but it’s not a good one.

DHS, for its part, has never studied whether there is a problem that necessitates a change in its approach to tracking travelers’ departures. DHS claims that the aim of the program is to detect visa overstay travel fraud and to improve DHS’ data on the departure of foreign nationals by “biometrically verifying” the exit records it already creates for those leaving the country.

Visa overstay travel fraud could—in theory—be a problem worth solving. Foreign nationals who wish to remain in the country undetected past the expiration of their visas could be arranging to have others leave the country in their place using fraudulent credentials. But DHS has only ever published limited and anecdotal evidence of this.

The DHS — despite rolling this out — still has no idea if it will do anything more than stock its database of human faces. Five years after being asked to demonstrate how biometric exit scans would be an improvement over the status quo, the DHS has yet to provide answers. In fact, it’s hasn’t even been able to deliver an estimate as to when its report answering these questions will be delivered.

This dovetails right into the DHS’s lackadaisical roll out of its biometric program. So far, the tech has only been installed in a few airports, but even in this limited trial run, the agency seems uninterested in ensuring the system’s accuracy. The DHS claims the program is doing great because it’s not returning a lot of false positives. But that’s the wrong metric if you’re hoping to catch people on the way out of the country.

DHS currently measures performance based on how often the system correctly accepts travelers who are using true credentials. But if the aim of this system is to detect and stop visa overstay travel fraud—as DHS suggests—it is critical and perhaps more important to assess how well it performs at correctly rejecting travelers who are using fraudulent credentials. Yet DHS is not measuring that.

The Center recommends DHS suspend the program indefinitely. It should not be put back into place until the DHS has clear legal authorization to do so and with all of the required privacy impact paperwork filed. It should spend some more time studying the tech to see if it can actually perform the job the DHS wants it to. The end goal for the tech — overstay travel fraud — seems like a spurious reason for expanded surveillance in US airports, especially when isn’t interested in limiting this biometric collection to foreign citizens only. But chances are none of these recommendations will be followed by the DHS — not while answering to a presidential administration that has done its best to portray most foreigners as inherent threats to the US way of life.

Filed Under: airports, dhs, face scanning, homeland security, privacy

United Says TSA Wants All Comic Con Comic Books Searched; TSA Says 'Not Us'

from the no-superheroes-in-airports dept

I thought writing about San Diego Comic Con being censorial assholes would be the strangest story we’d write about Comic Con this year, but leave it to airline security to come up with an even more bizarre story. Apparently United Airlines (because of course it would be United) put up a sign at the airport in San Diego telling people that all books needed to be removed from checked bags. A Twitter user named Adi Chappo tweeted a picture of the sign at the airport:

United, being United, responded that the TSA was demanding that all comic books from San Diego Comic Con could only go in carry on luggage.

Chappo asked for more detail and United told him to reach out to the TSA directly.

This wasn’t just a one-off either. Another Twitter user posted a Twitter direct message conversation with United, in which it claimed that there was a TSA restriction on any comic books in checked luggage:

So that’s all bizarre enough. I mean, there has been talk about restricting electronics on flights, as well as some talk of sifting through reading materials, but comic books? From San Diego Comic Con? Many people were left wondering what the hell the TSA could be thinking… and that included the TSA. When asked about all of this by reporters, the TSA appeared to be just as confused as everyone else and insisted there was no such restriction:

There is ?no restriction on anything related to putting comics or any type of books? in baggage, and TSA never put out any guidance to that effect, she said.

?In fact, they are allowed in both checked and carry-on baggage,? the spokeswoman told Consumerist, adding that there were no delays in the processing of checked bags out of San Diego yesterday.

So, there was either some sort of bizarre miscommunication between the TSA and United, or it was just United being United. Either way when it comes down to a dispute between the TSA and United, it’s difficult to bet on which organization is likely to act worse.

Filed Under: airports, comic books, comic con, searches, security theater, tsa
Companies: san diego comic con, united airlines

Taking The 'S' Out Of 'TSA:' Minneapolis Screeners Fail To Detect Contraband 94% Of The Time

from the human-equivalent-of-nothing-at-all dept

A couple of years ago, the DHS’s Inspector General set out to see if the TSA could actually do the one thing it was supposed to do: prevent weapons and explosives from being brought onboard. This was the result:

According to officials briefed on the results of a recent Homeland Security Inspector General’s report, TSA agents failed 67 out of 70 tests [95%], with Red Team members repeatedly able to get potential weapons through checkpoints. In one test an undercover agent was stopped after setting off an alarm at a magnetometer, but TSA screeners failed to detect a fake explosive device that was taped to his back during a follow-on pat down. Officials would not divulge the exact time period of the testing other than to say it concluded recently.

95 out 100 terrorists agree: the TSA is doing a bang-up job making travel safer. Now, the DHS is insisting foreign airports start buckling down on security or start subjecting fliers to a variety of inconvenient bans. However, it hasn’t had much to say about the insecurity of domestic airports, where things have progressed less-than-incrementally since the last Red Team audit.

When put to the test, Minneapolis-St. Paul International Airport failed 95 percent of security tests conducted at the airport last week, according to Fox 9 sources. [Fox has a rounding error: 17 of 18 is 94.4%]

Last Thursday, what’s referred to as the “Red Team” in town from Washington D.C., posed as passengers and attempted to sneak items through security that should easily be caught.

In most cases, they succeeded in getting the banned items though. 17 out of 18 tries by the undercover federal agents saw explosive materials, fake weapons or drugs pass through TSA screening undetected.

That percentage could conceivably have been worse. According to Fox 9, the Red Team stopped the audit once it hit the 95% threshold. Even the most sociopathic of us finds it uncomfortable to watch supposedly-trained people fail over and over at the one task they’ve been assigned.

Fox also points out the MSP team has failed before, albeit somewhat less spectacularly. Last year, TSA screeners missed 9 of 12 weapons/explosives. Since that previous low water mark, security has only gotten worse.

The TSA’s response? To borrow a gun from someone who got past the screeners in order to shoot the messenger.

When asked about Thursday’s failing grade, the TSA said, “TSA cannot confirm or deny the results of internal tests and condemns the release of any information that could compromise our nation’s security.”

Hey, TSA: it’s not the release of information that’s compromising national security. It’s your employees. If they did their job competently, there’d be nothing to report.

Filed Under: airports, minneapolist, security theater, tsa

Should You Have Any 4th Amendment Rights In An Airport?

from the seems-kind-of-important dept

For many years, we’ve written about the craziness of the so-called “border search exception” to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn’t apply at the border, and thus it’s allowed to search people at the border. The initial reasoning was — more or less — that at the border, you’re not yet in the country, and thus the 4th Amendment doesn’t apply yet. But that’s expanded over time — especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that’s within 100 miles of the border could be “close enough” to count as a “border search,” making the “border search exception” apply. That’s… messed up.

There’s now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a “border search exception” — but here’s the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.

Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that’s crazy. Unfortunately, the district court accepted this reasoning — and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn’t be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:

The District Court erred in denying Mr. Kolsuz’s Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant’s smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport–the equivalent of a border–does not change this case from one that fits squarely within Riley v. California… to one that is suddenly part of a narrow exception of cases justified by the sovereign’s customs enforcement rules.

The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.

Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of “every piece of mail… every picture… [and] every book” a person has…. These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.

Of course, many of us still find the very idea of a “border search exception” to be nonsensical in the first place. But if it’s there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We’re proud to sign onto this brief, and hope the court listens.

Filed Under: 4th amendment, airports, border search, border search exception, hamza kolsuz, privacy, warrants

FBI, CBP Join Forces To Turn Airports Into Informant Recruiting Centers

from the which-do-you-prefer?-a.)-spying-for-us-or-b.)-being-arrested? dept

The FBI and CBP have been using the nation’s borders as recruiting stations for informants. This phrasing makes it sound a lot more voluntary than it actually is. The Intercept has obtained documents showing how these two agencies work together to pressure foreign visitors into basically becoming spies for the United States.

The FBI gives CBP a list of countries of origin to watch out for among passengers, sometimes specifying other characteristics, such as travel history or age. It also briefs CPB officers on its intelligence requirements. The CBP sifts through its data to provide the bureau with a list of incoming travelers of potential interest. The FBI can then ask CBP to flag people for extra screening, questioning, and follow-up visits. According to the documents, the FBI uses the border questioning as a pretext to approach people it wants to turn informant and inserts itself into the immigration process by instructing agents on how to offer an “immigration relief dangle.”

These documents confirm what was alleged in a lawsuit filed by Rahinah Ibrahim two years ago. Her filing pointed out that the FBI has used threats in the past to secure cooperation, like revoking traveling privileges or trying to prosecute immigrants for minor crimes. Ibrahim’s lawsuit had another allegation: the secret “no fly” list is also being used as a coercive tool, with agents threatening to add travelers’ names to the list if they refused to go to work as informants.

The documents obtained here note that the joint recruiting efforts have expanded far past the nation’s border. Some form exists in every airport in the nation. Travel to and from certain countries is flagged for extra scrutiny. The CBP collects extensive data on everything crossing US borders — people or products — and turns this over to the FBI with any potential targets pre-flagged. It also provides the FBI with a list of passengers expected to arrive from “countries of interest” at the nation’s airports within the next 72 hours.

The CBP is supposedly in the border-securing business and the FBI in the law enforcement business, but these directives turn them both into intelligence agencies. This has made both agencies far more interested in recruitment and data harvesting than their original directives. The documents show that the CBP tends to grab the most data, starting with basic traveler information. There is no predetermined endpoint to the CBP’s investigative work. Secondary screenings at borders could run from a few minutes to several hours, depending on how much the CBP wants to harvest.

The CBP materials indicate that as part of secondary inspections, CBP can search “pocket litter,” documents, and cellphones. The April 2012 presentation promises a “full cell dump, including #s, text messages, pictures, etc.” at certain airports.

Everything is passed on to the Joint Terrorism Task Force, which then starts the uglier work of pushing certain travelers into becoming informants, using both carrots, sticks and, in some cases, visits to their homes. Immigration revocation threats are common. So is the promise of benefits. But in both cases, the FBI — working with CBP info — is using motivations it can’t actually offer or revoke.

When potential informants are not U.S. citizens, they may be particularly vulnerable to pressure from the FBI. Indeed, the bureau is counting on people thinking that FBI involvement in immigration decisions is normal, the documents indicate. In reality, FBI agents are expressly forbidden from promising immigration benefits to potential informants or threatening deportation.

The agency apparently believes deceiving foreign citizens during the recruitment process causes zero damage.

“If subject is deemed ‘recruitable,’” the slides state, then a “series of overt interviews set into motion.” If the person is “not recruitable,” then “NO HARM. Subject believes that the interview is part of the immigration process.”

This is why these recruitment efforts work. The FBI is counting on the ignorance of visiting travelers to help it turn visitors into informants. A suspicionless detention in which several invasive questions are asked is considered to be “no harm,” and the FBI will just move on to the next suggestion from CBP. And even if they think this might have been out of the ordinary, what are they going to do? Complain to another person in uniform and hope that the implied threats of deportation are bogus?

Filed Under: airports, cbp, fbi, informants, recruiting, tsa

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.

Filed Under: 4th amendment, airports, free to leave, in custody, tsa