Ehsan Zaffar (@Ezaffar) is a Senior Policy Advisor at the US Department of Homeland Security. He obtained his JD from Pepperdine University School of Law in Los Angeles and serves as adjunct faculty atGeorge Mason University in Washington, DC, where he teaches courses on national security, surveillance and privacy.
He is currently writing a textbook on national security and civil liberties to be published with Elsevier fall 2014.The views expressed in this article do not necessarily represent the views of the Department of Homeland Security or the US government. They are solely the views of the author in his personal capacity.
Zaffar can be reached at firstname.lastname@example.org.
[divider]Following 9/11, security measures have increased at all US ports of entry, especially airports. The Homeland Security Act of 2002 has given birth to new agencies such as theTransportation Security Administration (TSA), created to strengthen security, standardize procedures and facilitate air travel.
Security procedures, screenings, and interviews of international travelers to the United States have increased. All these activities have resulted in interminable delays for many travelers. Some have experienced perceived harassment or violations of their rights. Many travelers naturally want to know what their rights are at checkpoints and screenings after 9/11 as well as what they can do to obtain redress for the violation of these rights.
Domestic travel — airport checkpoints
Travelers are subjected to a variety of security procedures as they arrive at the airport and before they board their flight. Many of these are determined by government policies, particularly those of the Department of Homeland Security (DHS).
Government policy, moreso than the law, is subject to inconsistent application and revision, and so these security policies can change abruptly and without prior notice.It is also important to remember that irrespective of the length or severity of any screening, stop, or seizure at the airport, it is illegal for government agents and law enforcement officers such as Customs and Border Protection (CBP) and TSA officers to perform any stops, searches, removals or detentions based solely on the race, national origin, religion, sex or ethnicity of the traveler. (If travelers feel they have been discriminated against on the basis of any of these criteria, they can seek redress through various administrative options detailed below.)Airport scanners at security checkpoints have become ubiquitous after 9/11. The vast majority of such screening checkpoints are operated by the TSA. The scanners are known by many names, including:
- Advanced Imaging Technology (AIT) scanners
- Whole Body Imaging (WBI) scanners
- Full-body scanners
The types of scanners at each airport look different and use different technology to perform essentially the same function: a whole-body scan of the fully clothed passenger prior to entry into the secure area of the airport. When first introduced, these scanners, which mostly use "backscatter" or millimeter-wave radiation to see through clothes, presented an image of the body to TSA officers in screening rooms located separately from screening checkpoints. After a spate of complaints from passengers and civil liberties advocates, TSA reformed the operational procedures that govern screening and scanning.
Today, both screeners and passengers can view a generic "gingerbread man/woman" image upon exiting the scanner. The image, which looks the same irrespective of the passenger screened, highlights offending accouterments such as a belt or metal object picked up by the scanner. Thereafter, a TSA officer quickly pats down the offending area right outside the scanner to confirm the object's nature.
Requesting alternative screening procedures – the 'pat down'
Irrespective of the advances in privacy and expediency in screening made over the past few years, travelers may wish to pursue alternative screening procedures at the airport. They have a number of options.Travelers may inform a TSA officer that they do not wish to go through the scanner. TSA officers are required under TSA and DHS policy to comply with these requests. The travelers should mention that they are choosing to "opt out" of the scanner-screening process. However, if the travelers choose to opt out, they will be subject to a standard pat-down procedure.[note color="#f1f9fc" position="right" width=250 margin=10 align="alignright"]
Booking a flight? Know your rights[/note]The pat-down procedure is usually thorough and can be uncomfortable for the traveler (not to mention the TSA officer conducting the pat-down). TSA policy outlines pat-down procedures in detail, and travelers should be aware of their rights under TSA policy:
- Travelers have the right to request that the pat-down be conducted by an officer of the same gender, although there is no right to shorter wait times. Sometimes travelers will have to wait until an officer of the same gender becomes available.
- Travelers have the right to request a private screening at any time. Even if travelers forget to ask, TSA officers are obliged to offer a private screening if sensitive or private areas of the body must be touched during a pat-down. The private screening doesn't have to be completely private. Travelers have the right to bring a companion or family member with them to the private screening, and another TSA officer (also of the same gender) shall also be present to observe the screening for irregularities.
- Travelers may ask for reasonable accommodations, including chairs, during the pat-down process.
- Travelers should let the screening agent know about injuries or conditions that could cause them pain if parts of their body are touched or pressed. It's also important to alert the officer about any medical devices that could be dislodged by a search.
- Travelers have the right not to remove or lift any article of clothing to reveal a sensitive body area. This may include items of religious clothing. For instance, Sikh men often wear turbans and other articles of faith that traditionally may not be touched by individuals other than themselves. Moreover, removing or remaking the intricately bound turban can take considerable time and is a private ritual. Sikh men, therefore, can ask to pat down their own turbans in front of the TSA officer. The officer may then ask them to rub their hands with a cloth and place the cloth in a machine to test for chemical residue. Muslim women who wear the hijab (head covering or scarf) may ask to be screened privately by a female TSA officer if removal of a head covering is absolutely necessary.
(For more information on TSA's pat-down procedures — which, like all government policies, are subject to change — visit the Travel Information section of the TSA website.)
It's important to note that even if travelers do not opt out, they may have to submit to "resolution" pat-downs. Among other instances, these occur when scanners are unable to penetrate particularly dense clothing such as head scarves or tightly wound turbans. These pat-downs are subject to the same restrictions as the standard pat-downs discussed above. There are several other intricate exceptions to this policy. (Sikhs may consult with one of several Sikh advocacy groups, such as Sikh Coalition, to learn more. Several such organizations exist to assist those of other faiths or needs.)
Traveling with children
Even though TSA has recently implemented new policies regarding travelers under the age of 12, children may still be subject to pat-downs. Nonetheless, children and their parents have certain rights during the pat-down process. For example:
- TSA officers should not ask children to be screened alone. The ability of parents or guardians to remain with children under their care cannot be abridged during the screening process.
Detailed information about TSA procedures for children is available on the TSA website
International travel — customs checkpoints
Arrival at a US airport when traveling solely domestically should subject travelers to no additional security screening procedures. However, travelers may be subject to screening by Customs Border Patrol officials when arriving home from an international destination. Travelers may be stopped irrespective of the validity of their identifying documents, and CBP officials may ask travelers about their immigration status to determine whether they have the right or permission to enter or return to the United States.
Who – and what – can be searched?
Although it is illegal for law enforcement officers to perform any stops, searches, detentions or removals based solely on race, national origin, religion, sex or ethnicity, CBP officials may stop travelers based on citizenship or travel itinerary at the airport (or other ports of entry, including land crossings and seaports). Police need probable cause to search someone on the street, but the Supreme Court has ruled that no such suspicion is necessary for a search at the border, including international airports, which courts have ruled to be the equivalent of a border (United States v. Ramsey, 1977).
The Supreme Court has gone further to rule that not only is the expectation of privacy less at the international border than within the United States, but that the Fourth Amendment balance between the interests of the government and the privacy right of the individual leans in favor of the government at the border (Almeida-Sanchez v. United States, 1973). Additionally, there remains a distinction between border searches of the person and border searches of property. Until recently, customs officers at the border were authorized to search all travelers' closed containers without any level of suspicion (United States v. Montoya de Hernandez, 1985). For the purposes of these searches, electronic devices are considered closed containers. CBP officials can, and sometimes do, retain electronic devices for a significant period of time for forensic review and examination.
Searches of electronic devices
At least two intermediate appellate courts have upheld the government's position that searches of electronic devices fall under the standard for suspicionless property searches at the international border (United States v. Arnold, 2007). Under this position, the government asserts that it can open, access (via login or password), and search through all electronic information stored on travelers' electronic devices. CBP officers may also make copies of the files contained therein or may confiscate the electronic device for further study; they must return the items and provide a receipt for identification of items.
Until recently, challenges to CBP's authority asserting that property searches of electronic devices at the border violate individuals' First Amendment right to freedom of expression have not been upheld. However, in March, the Ninth Circuit Court of Appeals in United States v. Cotterman issued a decision en banc holding that CBP agents must have reasonable suspicion of criminal activity before conducting comprehensive searches of laptops or other digital devices.
This decision is a significant reversal of prior court doctrine and creates, for the first time, a broad standard aimed at protecting travelers' electronic information from suspicionless searches. The court did not define what constitutes a comprehensive search, and the decision only applies to agents operating within the Ninth Circuit (which includes the US-Mexico border along Arizona and California). It is likely that electronic devices will still be subject to cursory examinations.
Searching the body
Per the Ramsey decision, searches of the person at an international border are not subject to any requirement of reasonable suspicion or probable cause and do not require a warrant. Nonetheless, more invasive searches or seizures of a person's body require some suspicion.
In Montoya, federal agents detained a pregnant passenger long enough for ordinary bowel movements to evacuate the contraband smuggled in her alimentary canal. The Supreme Court held that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.
In the context of a search of the person at an international border, reasonable suspicion means that the facts known to the customs officer at the time of the search, combined with the officer's reasonable inferences from those facts, provide the officer with a particularized and objective basis for suspecting that the search will reveal contraband. A customs officer may rely on training, prior experience, and even entirely innocent factors to form the basis for reasonable suspicion.
When to request an attorney
For the vast majority of travelers, the CBP screening process takes no more than a few minutes. The wait time can be longer depending on the number of passengers at the airport, but the actual process is usually short and straightforward. Nonetheless, security procedures sometimes require consultation with other entities or detailed screening procedures. In these cases, a "secondary screening" process takes place. If travelers are selected for this longer secondary interview when coming to the United States, they have certain rights:
- US citizens have the right to an attorney present during any secondary screening.
- Non-citizens usually do not have a right to an attorney when questions relate to subjects other than immigration status.
US citizens who are denied entry into the United States (yes, this can happen) and fear persecution, death or violence against their person if they return to the country they came from should immediately request asylum from the interviewing CBP officer.
Travel can be an increasingly confusing and arduous experience. The gamut of applicable laws, regulations and ever-changing policies that govern airport screening and international travel can be overwhelming — not only for the traveler, but also for the law enforcement official at the airport. With millions of individuals traveling daily, mistakes are bound to happen.
Travelers have a number of avenues of redress, including administrative remedies, which should be pursued prior to legal action.Chief among these is the DHS Traveler Redress Inquiry Program (TRIP). TRIP is the US government's primary method of providing redress of any kind to travelers. Clients should be encouraged to file a TRIP request at dhs.gov/trip. Upon successful resolution, the traveler is provided with a redress number that can be used when booking future travel. The redress number, along with other identifying information requested by airlines, allows DHS to ensure that the individual is not misidentified on watch lists.
If the TRIP system is unable to resolve the query, options exist to request review via an administrative appeal. Failing that, the courts remain an option, although one that has increasingly upheld the government's countervailing interest in national security.[divider]A version of this article originally appeared in the American Bar Association's GP SOLO Magazine, Vol. 30 No. 3 (May/June 2013).
Please note that this article or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.