Lawmakers in nine state form caucus to battle TSA rules

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April 16, 2011

By Eileen McGuire-Mahony

A bi-partisan group of lawmakers from nine states has formed a caucus to address controversial screening procedures implemented by the Transportation Security Administration. With the working name of “United States of Travel Freedom”, the group is addressing both the use of imaging machines that capture detailed nude pictures of passengers and the use of the “enhanced pat down,” a government euphemism for the open handed custody searches developed by law enforcement for searching suspects.[1]

One member of the caucus, Hawaiian Senator Samuel Slom, write that, "For years, a growing number of people and organizations have raised red flags about the operations of the TSA, its costs and its effectiveness, or lack thereof, of ever identifying a single terrorist or crime, while inconveniencing and traumatizing hundreds of citizens."

Sloam cited the recent approval of unionization for the TSA. He and other advocates of state responses to a federal agency have also frequently cited privacy and overall 4th Amendment concerns, along with worries over the health effects of widespread use of radiation, the cost of the imaging machines and the growing TSA payroll, and a false sense of security.

The TSA and its parent agency, the Department of Homeland Security, have refused to moderate the new policy since its introduction in October 2010 and is currently in a stalemate with Congressional committees who are demanding proof of the need for, safety, and efficacy of the practices, data the TSA and DHS refuse to provide, citing national security.

Hawaii is one state where geography makes air travel an unavoidable necessity, making the DHS statements that individuals can opt out of searches by not flying meaningless. Sloam found a like-minded fellow lawmaker in another state where road trips are not really an option.

Anchorage, Alaska Democrat Sharon Cissna, a member of the House, was on her way back to Alaska from the continental United States when she was told she would need to submit to a full body search to board her plane in Washington. A breast cancer survivor, Cissna said the proposed pat down was invasive and humiliating and that survivors of body altering disease should not be asked to submit to government searches that would highlight their illness. She returned to Alaska via prop planes and a boat, becoming something of a celebrity at a time when numerous travelers with potentially embarrassing medical conditions were complaining of TSA treatment.


Cissna's story leads to action in Washington state

Washington State Senator Val Stevens, a Republican representing Olympia, soon wrote an open letter to Alaska Airlines in the aftermath of Sharon Cissna's incident, in which she outlined laws on the books in Washington that may be interpreted to forbid much TSA conduct. Specifically, the Stevens letter cited laws against voyeurism, sexual violation of an individual in custody, and taking “indecent liberties by compulsion.” Stevens also raised concerns of taking nude photographs of minors and of subjecting children to intimate physical “enhanced pat downs.”

Stevens was later invited to testify before Congress by Utah Congressman Jason Chaffetz, a Republican who became a national leader for improved TSA regulation after a travel experience in which he claimed TSA employees gloated about their power over passengers and deliberately maximized the humiliation inflicted on him. All 60 members of Alaska's legislature soon signed a letter asking the U.S. Senate to follow the House's lead and convene hearings.

Cissna and Chris Tuck, also an Anchorage Democrat, introduced HCR 8, a bill that takes no explicit legal action but urges the TSA to consider less invasive procedures and ask Congress to provide better oversight to the TSA. The bill eventually passed the legislature as Legislative Resolution 4 and was sent to Governor Sean Parnell on March 15, 2011.

Several other state saw the same language introduced in their legislatures, blasting airport security as, “invasive, demoralizing, illegal, and unconstitutional” and accused the TSA of, “ overly aggressive manner, resulting in severe and humiliating invasions of privacy.”

In scattered states, bill seek to blunt the TSA

Across some other states, supporters or abolishing or more tightly regulating the TSA actually proposed bills that would strictly limit the powers of federal air safety workers in the states' airports.

In Hawaii, SB 1150 was brought forth by Sam Slom, the lone Republican in the state's Senate. It asked that “[t]he use of body scanning equipment in an airport in this State to screen passengers and airline crew members [be] prohibited” and recommended a $1,000 fine for each violation. Sloam bill, introduced January 26, 2011, was moved to three different committees and never got a hearing, but he has promised to bring it back in the next session.

Texas' David Simpson, a Republican, introduced HB 1938, which echoed the ban on nude image scanners and the $1,000 fine for each violation that had been in the Hawaii bill. HB 1938 was left pending in committee as on April 6, 2011. A companion bill, HB 1937, would specifically criminalize the act of forcing someone to submit to “offensive touching” as a requirement to enter a public building or to use transportation. That bill was passed unanimously out of committee on April 12, 2011. Simpson also introduced a resolution expressing offense at the TSA, HCR 80.

While each member of the caucus has introduced a bill or resolution addressing the TSA, there have been some other bills from lawmakers not part of the group. New Hampshire's HC 628 would have criminalized much of what the TSA did by applying the state's penalty for sexual assault to workers who took or viewed nude image of passengers or who touched passengers intimately.[2] Sponsors George Lambert and Andrew Manuse wanted to make, "the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault."

While fans of the bill and civil libertarians delighted in the logic that sexual assault ought to be treated as such regardless of federal government orders and imagined a state full of TSA workers forced to register as sexual predators, the TSA, DHS, and U.S. government, when they did comment on the bill, it was to indicate they would protect their federal work force from complying with a state law. HC 628 was retained in committee, a way to avoid killing the bill while buying time to fins a way to stop the TSA procedures that led to the bill while admitting the state would not realistically would able to enforce a criminal penalty with the federal government blocking it.[3]

The only two amendments added to HC 628 to date both ask the Attorney General and a legislative committee to investigate and report on TSA practices, delivering recommendations on legal action within 90 days of the Assembly's sine die. Realistically, though, any bill at all the seeks to criminalize behavior of the TSA is unenforceable by the states so long as federal agents are so strongly protected from any state legal actions as is the current reality. One Congressional bill, Rand Paul's HR 6416, would have done just that, stripping immunity from federal employees for any action that qualifies as a sexual assault under state law. Introduced in the last days of the 11th Congress, it was referred to the Judiciary Committee without further action.

Similarly, in Arizona, HB 2288, a bill to flatly outlaw the TSA from operating in the states airport's disappeared from the legislative calendar despite its sponsor Jeff Dial, insisting he had no part in pulling it.

Other states pass resolutions calling for action in D.C.

A full list of caucus members who have carried a resolution to address the TSA, taken from the Travel Freedom caucus' temporary webpage, is below:

  • In Washington, Democratic Representative Sherry Appleton backed HJM 4000 and HJM 4001. The first pointed out the privacy violations and sense of unease of humiliation travelers complained of and, argued that the TSA was actually a counterproductive force in air travel. The second highlighted safety concerns about poorly regulated radiation and cited possible First Amendments issues over the freedoms of individuals who consider submitting to nude images and intimate touching to be religious violations.
  • In Michigan, HR 368 memorialized the federal government to end the use of “enhanced pat downs” and nude body imaging, labeling both practiced as Fourth Amendments violations and as measures that have not actually been shown to have an effect on safety. Sponsor Eileen Kowall, an Oakland Republican, cast the new TSA protocol as, “invasive, demoralizing, illegal, and unconstitutional.”
  • Montana Representative Diane Sands, a Missoula Democrat, also memorialized the U.S. Government, with her D 2079, proposed as a joint resolution, sharing language with the Washington resolutions
  • The same to items introduced in Washington were sponsored in the New Hampshire House of Representatives by Republicans Jordan Ulery and Jennifer Coffey as HCR 8 and HCD 9, respectively.
  • The same items were also sponsored in the New Jersey Senate as SB 2509 and SB 2511, both by Republican Diane Allen, the Deputy Minority Leader. Fellow Republican Michael Doherty also sponsored a resolution, SR 91, that accused the TSA of, “ overly aggressive manner, resulting in severe and humiliating invasions of privacy.” The same language was in AR 127, by Assemblywomen Alison McHose, also a GOP member.
  • Lastly, Pennsylvania's House saw HR 16, by Republican Will Tallman of Reading Township.