Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.
Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.
"She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that
she couldn't see it," local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04).
"She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly," he said. "It's pretty simple."
Chenoweth-Hage wasn't seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn't they at least let her see that? asked Statesman commentator Dan Popkey.
"Because we don't have to," Mr. Gonzales replied crisply.
"That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else," he said.
Thus, in a qualitatively new development in U.S. governance, Americans can now be obligated to comply with legally-binding regulations that are unknown to them, and that indeed they are forbidden to know.
This is not some dismal Eastern European allegory. It is part of a continuing transformation of American government that is leaving it less open, less accountable and less susceptible to rational deliberation as a vehicle for change.
Two points:
1. If you aren't reading Steven Aftergood's Secrecy News, you should be.
2. If this refusal to show an American citizen the law authorizing someone to pull them aside doesn't bother you, why?
I'm a law student, and as such, I have access to nifty tools that make searching US law easier, but there's nothing barring you, yes, you, from reading the US Code if you feel like it, or the Code of Federal Regulations. (Try here, here, here, or here for the US Code, and here for the Code of Federal Regulations, and here for the specific sections of Title 49 I refer to below.)
Title 49 of the Code of Federal Regulations (CFR) describes the regulations underlying the TSA. Now, Title 49, Subtitle B, Chapter XII, Subchapter B, Part 1520 basically deals with describing what categories of data are and are not sensitive security information.
49CF41520.5(b)(9) says
(9) Security screening information. The following information regarding security screening under aviation or maritime transportation security requirements of Federal law:
(i) Any procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other authorized person.[Emphasis added.]
(ii) Information and sources of information used by a passenger or property screening program or system, including an automated screening system.
(iii) Detailed information about the locations at which particular screening methods or equipment are used, only if determined by TSA to be SSI.
(iv) Any security screener test and scores of such tests.
(v) Performance or testing data from security equipment or screening systems.
(vi) Any electronic image shown on any screening equipment monitor, including threat images and descriptions of threat images for threat image projection systems.
is considered "sensitive security information", that is not shared except with appropriate personnel. (Note: This blog entry was edited on Dec 10, 2004 to correct a mis-cite of mine. Sidra.)
That's all well and good, except, Ms. Chenoweth-Hage allegedly asked after the screener's authority to pull her aside, not the selection criteria that resulted in her being pulled aside. (If the latter case, like I said, that is categorized as "sensitive security information". The appropriate answer might have been, "per Title 49 of the Code of Federal Regulations, Section 1520.5, I cannot share the specific details of our screening program with you". The appropriate answer was not "no".)
Part 1542.5 of Title 49 (49CFR1542.5) is the TSA's inspection authority of the airports themselves. Their right to be onsite, basically.
Part 1544 discusses screening. Basically, you have to screen.
Sec. 1544.207 Screening of individuals and property.
(a) Applicability of this section. This section applies to the inspection of individuals, accessible property, checked baggage, and cargo as required under this part.
(b) Locations within the United States at which TSA conducts screening. Each aircraft operator must ensure that the individuals or property have been inspected by TSA before boarding or loading on its aircraft. This paragraph applies when TSA is conducting screening using TSA employees or when using companies under contract with TSA. [Emphasis added.]
Section 1544.201 provides an overview of what a screening program should achieve and that if a passenger refuses screening, an airline is to refuse to transport. Note that it does not present specifics of criteria aiports should use in screening. That's left to each individual program.
Sec. 1544.201 Acceptance and screening of individuals and accessible property.
(a) Preventing or deterring the carriage of any explosive, incendiary, or deadly or dangerous weapon. Each aircraft operator must use the measures in its security program to prevent or deter the carriage of any weapon, explosive, or incendiary on or about each individual's person or accessible property before boarding an aircraft or entering a sterile area.
(b) Screening of individuals and accessible property. Except as provided in its security program, each aircraft operator must ensure that each individual entering a sterile area at each preboard screening checkpoint for which it is responsible, and all accessible property under that individual's control, are inspected for weapons, explosives, and incendiaries as provided in Sec. 1544.207.
(c) Refusal to transport. Each aircraft operator must deny entry into a sterile area and must refuse to transport--
(1) Any individual who does not consent to a search or inspection of his or her person in accordance with the system prescribed in this part; and
(2) Any property of any individual or other person who does not consent to a search or inspection of that property in accordance with the system prescribed by this part.
And part 1540.107 (49CFR1540.107) discusses the "responsibilities of passengers and other individuals and persons", in particular, passenger submission to screening and inspection.
1540.107 Submission to screening and inspection.
No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.
I believe the above grouping of regulations:
- the authority of the TSA to inspect and oversee inspections (1542.5),
- coupled with the requirement that airports conduct inspections (1544.207),
- and what those inspections should achieve(1544.201),
- coupled with the requirement that passengers submit to inspections(1540.107),
would qualify as demonstrating an airport screener's authority to screen and inspect -- whether that screening included more than one phase or not, or secondary inspections of some subset of travelers -- Ms. Chenoweth-Hage as she tried to travel on United Airlines.
So, why did these folks refuse to show their authority to search an airplane passenger, when asked? Barring confusion over exactly what was requested? Since the regulations above are public law, and thus not "sensitive security information" as described in 49CFR1520.7(c)?
Why?
I'll tell you why. Because they figured they could get away with it. Because they knew she had to bend over and take it, if she wanted to fly.
Now, what I actually found just as troubling as this behavior if not more so is sub-section 109,
1540.109 Prohibition against interference with screening personnel.
No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.
Because, how do you define "interfere with"? Is asking a screener a question about their authority 'interfering'?
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