Posted by Brad @ 6:42 pm on April 3rd 2009

TSA Responds to the MO Campaign for Liberty Incident

Which I wrote about here. The response:

At approximately 6:50 p.m. on March 29, 2009, a metal box alarmed the X-ray machine at Lambert-St. Louis International Airport, triggering the need for additional screening. Because the box contained a number of items including a large amount of cash, all of which needed to be removed to be properly screened, it was deemed more appropriate to continue the screening process in a private area. A Transportation Security Administration (TSA) employee and members of the St. Louis Airport Police Department can be heard on the audio recording. The tone and language used by the TSA employee was inappropriate. TSA holds its employees to the highest professional standards. TSA will continue to investigate this matter and take appropriate action.

Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected. As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.

It’s nice that they acknowledge the TSA official acted inappropriately, but they sure do step all over that in the next paragraph. But note the parsing:

Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected.

But in this case (and most others), the only suspicion of criminal activity comes from the large amount of cash. Talk about a circular self-fulfilling justification! In this specific case, pretty much no party denies that there was no suspicion of criminal activity. So maybe they should go a bit more in depth as to what was “inappropriate”—not just the tone and language, but the attempted detention itself.

As a general rule, passengers are required to cooperate with the screening process.

Huh? Yes, exceptions only being when the questioning is over matters not part of the screening process, i.e. traveling with a legal amount of money. This line reads “CONSENT! CONSENT! CONSENT!”

Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.

This part I honestly don’t know about. Is there a legal mechanism in place wherein refusing to answer a question bumps you up to some new category of potential offender? I.e. is there a legal proscription for that “further inquiry” part? There might be, I honestly don’t know.

But either way, the TSA ends the statement with basically the exact same threat that the employees used in the tape. “So really, guy…just answer the fucking questions—forget whether you ‘have to’ or not—or things will be difficult for you.”

I started out being fairly positively inclined to their response, but now I’m mad again. >:(

12 Comments »

  1. You reference a ‘legal amount of money’. Actually, I believe it is legal to travel within the country with what ever sum of cash you desire. The restrictions arise during international travel, with a limit of ten thousand dollars.

    I concur with your worry. The lack of an explicit standard of reasonable suspicion in order to detain someone in order to question the origin of legal possessions is deeply troubling.

    Comment by Cameron — 4/3/2009 @ 8:47 pm

  2. Also, has anyone heard the entire recording? I dug a bit but could only find the TV interview that you previously posted.

    Comment by Cameron — 4/3/2009 @ 8:48 pm

  3. I stand corrected. You’re right, I just checked—there is no amount of money on domestic flights that is illegal to carry or that requires anything (paperwork or whatever). I guess that makes sense—you don’t really have to declare anything in domestic travel. 10k is usually just my magic number for “anything below you’re okay, anything above and you have to start registering”.

    Full audio here, though I haven’t listened to it (I just dug it up by googling the guy’s name and scrolling through some comments on the CfL’s original post on the subject). Bear in mind that he got the audio by activating the record feature on his iPhone on the sly, so I’m not sure when it actually starts in the process.

    Comment by Brad — 4/3/2009 @ 8:59 pm

  4. The full recording is pretty entertaining. I must say, in hindsight and if I was in the mood to make a stink, I would have phrased some things differently. He repeatedly states that he does not understand the question. That’s a poor statement, especially in contrast to his other answers in which he questions whether the law compels him to answer. I would have also been speaking up whether the only reason for detention was the presence of cash and how that alone constituted reasonable suspicion.

    For the sake of legal purity he also should have not corroborated the fact that the funds were indeed campaign contributions, even though it led to his eventual release.

    Talk of requesting a lawyer and questions of whether he was under arrest would have been fun too.

    Regardless, the guy did a marvelous job in a stressful situation and wins props for having the mental wherewithal to think to record the encounter. This also vividly illustrates the true weaponry that video and audio recordings represent. This would have NEVER come to light if it was just his word against theirs. Twenty minutes of audio makes all of the difference.

    Comment by Cameron — 4/3/2009 @ 9:32 pm

  5. Yeah, that would have been my route too, the “am I under arrest?” question. I’ve done that twice, sticking to that question, and cops hate it for the simple reason that that’s the automatic end point for any conversation with them (as well it should be). Either you are (or at least you’re legally being detained), or you’re free to go. And if you’re not free to go, they have to come up with a by-the-book reason why you’re not in a hurry, and apprise you of it.

    The normal answer is “you will be if you don’t start cooperating,”. To which the stickler answer is “if I’m not presently, then I’d like to leave now please”.

    For the record, the two times I did that, be a stickler with the “am I under arrest?” thing, once it worked, the other time the answer was “yes”. :(

    Comment by Brad — 4/3/2009 @ 10:35 pm

  6. “Am I under arrest” doesn’t get him on the plane, though, does it? TSA can cause him to miss the flight without arresting him.

    Comment by Rojas — 4/3/2009 @ 11:48 pm

  7. The FULL Audio is here & worth listening to
    http://www.dailynewscaster.com/2009/04/02/audio-full-version-steve-bierfeldt-detained-and-questioned-by-st-louis-tsa/comment-page-1/#comment-10181

    TSA has a blog, Evolution of Security, so be sure to let “Bob” know your thoughts on this incident: http://www.tsa.gov/blog/
    ***Be sure to read all of the comments which include those of TSA personnel.

    TSA has a whole office & Special Counsel to deal with incidents like this, and you can also find out how to file a complaint here:
    http://www.tsa.gov/research/civilrights/civilrights_travelers.shtm

    From http://www.dhs.gov/xlibrary/assets/crcl_third_quarter_report_to_congress_FY_2008.pdf

    The Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. 110-53, requires the Office for Civil Rights and Civil Liberties (CRCL) to report quarterly regarding: (1) the number and types of review of Department actions undertaken; (2) the type of advice provided and the response given to such advice; (3) the number and nature of complaints received by DHS for alleged violations; and (4) a summary of the disposition of such complaints, the reviews and inquiries conducted, and the impact of these activities.1 In accordance with this requirement, this report serves as CRCL’s third quarter report, covering the period from April 1, 2008, to June 30, 2008.

    From http://www.dhs.gov/xabout/structure/editorial_0338.shtm
    About the Privacy Office: The Department of Homeland Security Privacy Office is the first statutorily required Privacy Office at any federal agency whose mission is to minimize the impact on the individual’s privacy, particularly the individual’s personal information and dignity, while achieving the mission of the Department of Homeland Security.

    Comment by Leah — 4/4/2009 @ 12:31 am

  8. He didn’t seem to concerned with making the flight.

    Comment by Cameron — 4/4/2009 @ 12:40 am

  9. “Am I under arrest” doesn’t get him on the plane, though, does it? TSA can cause him to miss the flight without arresting him.

    Yes, absolutely. More than that, they can probably also add him to some Watch List, thereby making him more likely to every flight in the future. Again, it’s akin to extortion, in this case (and those like it). You can choose to stick to the letter of the law, but in doing so you invite that gray area of abuse. More than invite…in most cases, practically provoke it, from their perspective.

    However, in any police interaction, the decision has to be made whether the person is under arrest or under legal detention, which is basically the same as an informal detention, but with paperwork and some kind of reasoning, i.e. material witness or official suspicion charge that has to be processed through official channels (i.e. eventually meeting a judge), and thus, on the plus side, becomes actionable for you (i.e. you can bring charges against them). Or neither (i.e. free to go).

    The truth is that most police officers (or federal agents, or TSA, or whoever) want to extend their “informal” interactions with a suspect for as long as they absolutely possibly can, pretty much to see if they can get evidence for one of the first two charges (they want to keep asking you to voluntarily cede your rights until they can reach a point where they feel comfortable no longer having to ask). However, that period—wherein you’re being “informally” asked questions, the officers are basically fishing—is also a gray area legally for you. Your legal protections are hazy at best, because the officers can always assert that you were just talking to them, unofficially, voluntarily ceding your rights by the very act of talking to them without asserting your rights. When you steadfastly assert your rights, that’s when they have to either start the paperwork (in which case, suddenly everything they do is actionable, i.e. suddenly everything you do has a certain extent of legal protection), or crossover into outright abuse.

    So essentially, by asserting your rights, you’re bringing a measure of standard accountability, which is a terrible inconvenience for them, which is why they’ll do everything they possibly can to stave off or outright deny that moment. Which presents a terrible conundrum for you and I. Assert your rights, guarantee hostility. Don’t, and take your chances. Sort of a cribbed version of the prisoner’s dilemma, in a way.

    Comment by Brad — 4/4/2009 @ 1:01 am

  10. Or, as kaligula puts it:

    The last thing you want to do, trust me, in the majority of situations, is to challenge these yokel’s authority like an ACLU lawyer quoting the constitution. It won’t end well…

    The fact is, for the majority of the cases, if you challenge the TSA, you end up being detained, likely incur significant legal expenses, could likely have your name placed on the Terror Watch List. In the latter case, if your livelihood depends on air travel, you could lose your livelihood.

    If you fly, you obey the TSA thugs or pay the consequences. Get used to it…

    But, of course, if everybody were to follow that advice, it would just get significantly worse. And if, at that point, people re-decided to be passive, it would get worse still, and so on.

    Rojas is right; the only way to reassert that line is to…well, reassert it. The one plus is that, at least right now, the costs of one instance wherein the police cross the line and get whacked for it will usually be far greater than the benefits of the 100 times they cross they line and don’t. So, at the very least, we don’t have to match them 1:1. A handful of very dedicated flies in the ointment really can make a difference. But if we choose to lower the cost—either from submission or cynicism (same difference)—well, it’s all markets, ka1ig. :)

    Comment by Brad — 4/4/2009 @ 1:10 am

  11. Most people do not realize that “Miranda Rights” only kick in after the person is placed under arrest. Prior to arrest anything you say may be held against you and repeated in court. If reported inaccurately by the officer, and without electronic record, it will be your word against that of the officer. Guess who usually wins that contest? Usually the best advice is not to talk to the police, especially when you are innocent. The insistence on inquiring, “Am I under arrest” is a good strategy.
    Regards.

    Comment by Coogan — 4/5/2009 @ 11:08 pm

  12. I have no sympathy for the guy, whether or not he was “required by law to answer the question” is completely irrelevant, it’s not an unreasonable question and there’s no reason to refuse to answer it other than cause a stink, which was his intent all along.

    Comment by Dingle — 4/7/2009 @ 4:52 pm

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