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My letter to the TSA prompted this blase response by the TSA (my response is below):

Thank you for your e-mail regarding your concern about the use of advanced imaging technology (AIT) at Transportation Security Administration (TSA) airport security checkpoints.

TSA screening technology includes equipment such as walk-through metal detectors; hand-held metal detectors; carry-on luggage scanners (checkpoint x-ray systems); explosives trace portals (air puffers); explosives trace detection systems; and more recently, AIT. All or some of these technologies may be used at the airports through which you travel.

AIT is a classification that covers two similar technologies, millimeter wave and backscatter. Both systems work in a similar way to give Transportation Security Officers (TSOs) a virtual image of a passenger that conspicuously highlights potentially dangerous items. AIT gives TSA a way to detect a wide variety of threats, including suicide vests and other improvised explosive devices that may be hidden under passengers’ clothing and cannot be detected by walk-through metal detectors. AIT enhances security, reduces the need for pat-down searches for passengers with joint replacements and other medical conditions, and improves passenger convenience and comfort.

TSA is sensitive to passengers’ concerns about protecting their privacy as it relates to the security screening process, particularly the use of AIT. TSA has rigorous controls to ensure privacy during AIT screening. We have worked very hard on the privacy issue and the result is a noninvasive image that allows TSOs to see hidden weapons or explosives. TSOs attending the passenger cannot view the image; instead, a second TSO views the image in a separate, remote location where he or she cannot view the passenger. The image cannot be stored, transmitted, or printed, and is permanently deleted immediately after being viewed. In fact, the machines have no storage capability. No cameras, cellular telephones, or other devices capable of capturing images are permitted in the image viewing area. Also, as we stated earlier, all facial images are blurred.

Privacy and security are not mutually exclusive, and TSA has had an ongoing dialogue with privacy groups on these issues. AIT is an effective tool in detecting terrorist threats and another tool in our layered approach to security.

Screenings using AIT are voluntary. Individuals who do not wish to be screened by this technology will be required to undergo alternative screening, including a physical pat-down. Signs are posted in front of each AIT location advising passengers of this right.

We hope this information is helpful.

My response is below:

Thank you for your response. It did not, however, address the legal concerns mentioned, including the TSA’s violation of Terry v. Ohio – a law enforcement officer is not permitted to conduct what is in essence a stop-and-frisk without at least reasonable, articulable suspicion that a crime has been, is, or is about to be committed, except under very limited circumstances (at border crossings, for instance). Given this rationale, TSA is in clear violation of 18 USC 1983, and its officers are subject to arrest. If convicted, TSA officers are subject to a penalty of 10 years imprisonment.

Additionally, a pat-down search that includes contact with the anus, buttocks, or sexual organs subjects TSA officers to arrest under a variety of state as well as Federal statutes, including sexual assault, child molestation, and unwanted sexual contact, depending on the jurisdiction. I would also remind you that coerced “consent” under the unlawful threat of being barred from air travel is, according to the law, not consent at all and is actionable, both criminally and civilly, and that according to the Supreme Court, there are certain rights which one cannot waive.

Certain AIT scanners present a clear view of a traveler’s genitals – to view such images without the consent of the traveler is a criminal offense in most jurisdictions, and the ability of AIT systems to store and forward images subjects TSA officers to prosecution for unlawful possession of such images. If the images is of a minor, in many jurisdictions this constitutes possession of child pornography, and if such images are transmitted across state lines, this is a Federal offense. According to TSA RFQ documents (and contrary to what you state in your email), the AIT scanners “must be able to store the captured images and transmit them to a remote location”. There have been published reports of TSA officers viewing the detailed images, printing them out, and commenting – a clear violation of traveler’s privacy. Additionally, contrary to what you state in your note, AIT scanners cannot detect certain low density explosives (I will refrain from mentioning which explosives cannot be detected), and cannot determine if a specific liquid is explosive or not, nor can they detect explosive vests or other IEDs that cannot be detected by conventional metal detectors – if this were true, why have you intentionally put the traveling public at risk for 9 years by promoting the use of metal detectors and other security measures that you believed would not be effective? This is at the very least criminal negligence on the part of the TSA and at worst both criminally and civilly actionable.

I would advise you to consult with TSA’s legal counsel, as these are very serious matters that may result in TSA officers being arrested en masse at airports by citizens or by local police officers and prosecuted. At the least, this would result in a huge disruption to air travel, and at most would subject large numbers of TSA officers to prosecution and imprisonment.



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