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Steven Frischling
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Work: JFK-SFO-CDG-HKG
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Steven Frischling, aka: Fish, is globe hopping professional photographer, airline emerging media consultant working with large global airlines and founder of The Travel Strategist. Fish has racked up more than 1,000,000 miles since he started to track his mileage in 2005.

Fish's travel tends to be less than leisurely, including flying from New York to Basrah, Iraq, for six hours; Hong Kong for eight hours, Kuwait City for two hours and traveling around the world in 3.5 days to shoot a series of photo assignments in 4 cities and 4 countries on 3 separate continents.

Fish grew up at the end of New York's JFK International Airport's Runway 4R/22L, which probably explains his enjoyment of watching planes, fly overhead. When not shooting photos or traveling Fish designs camera bags, hones is expertise on airline security and spends his time at home cheering for the Red Sox with his 3 kids 102 yards from the ocean.

DHS Lawyer : Travelers Need Not Submit To TSA VIPR Teams

A few days ago I wrote about the Transportation Security Administration’s (TSA) Visible Intermodal Prevention and Response (VIPR) teams, addressing the effectiveness and legal questionability of the TSA VIPR Program, in this post TSA VIPR Teams – Increase A Legally Questionable Failing Program.

 

This morning I received an email from a Department of Homeland Security (DHS) attorney, who wishes to remain anonymous, addressing the legality of the TSA’s VIPR teams searching travelers outside of an airport environment. As the TSA’s parent agency is the DHS, this email is an interesting view of how off course the TSA may be in their execution of VIPR Teams.

 

The following is the email I received:

 

Fish,

 

Your article the other day on the TSA VIPR program was insightful, well written and your opinion that the VIPR program is “legally questionable” hits the nail on the head.   The TSA’s deployment of VIPR teams places the agency into a hazy space that has not yet been fully challenged in the courts.

 

Yes, the TSA is charged with protecting transportation in the United States, but its role outside of airports and in some limited capacity the railroad industry is largely undefined.  The lack of definition in the TSA’s scope of authority and intrusion into a traveler’s personal possessions puts the agency in a dangerous legal position.

 

In your post October 29 article TSA VIPR Teams – Increase A Legally Questionable Failing Program? you cite two 9th Circuit Court cases, US v Davis and US v Pulido-Baquerizo. As you note both of these ruling are in regard to travelers in an airport environment. While the TSA makes the reasonable expectation leap that these rulings could apply to mass transit centers, the fact is that these rulings do not include mass transit centers. The legal wording is for travelers seeking to fly. In fact the wording in these rulings specifically includes the words “airport” and “fly.”

 

In this day and age travelers who enter an airport have reasonable knowledge that they will encounter a search of their person and property either by physical pat down or by a technological device or both.   Travelers entering a train station, bus station, ferry terminal, subway station, do not have any reasonable expectation that they will be stopped and searched without probable cause and travelers need not submit to TSA VIPR Teams.     The TSA cannot demonstrate that a person simply entering a mass transit center has given up their reasonable expectation or privacy, as determining what is inside a person’s pockets or bags requires a physical intrusion into the person’s personal property.

 

Should a traveler encounter a TSA VIPR team deployed in a non-airport environment I would advise them to refuse to submit to the search.  Once they have refused the search they should ask for the team leader and request that person’s name, title and where they are based.  If the traveler has a video camera, as most phones now do, I would advise them to record their entire interaction. As you have written about the TSA publicly states that photography and video of TSA operations are legal. Furthermore video in a public space cannot be legally impeded except in certain very limited instances in the United States.

 

The TSA may threaten the traveler with arrest for refusal to comply and it is possible the local law enforcement on site will comply with the TSA’s arrest request, however this arrest should not hold up in court if the traveler is polite, non-combative and complies with the arresting officer’s request.

 

Some train stations and bus stations have signs stating that any packages brought into the premises may be subject to search, however unless specifically stated, these searches would be limited to a train station not the platform outside, or bus station boarding area outside the building.  Furthermore these search advisory signs generally apply to a search being conducted by law enforcement and require law enforcement to have probable cause to warrant the search of a bag. A sign hung in the corner of a train station stating bags may be subject to search does not negate the need to demonstrate probably cause for the search by law enforcement.

 

TSA VIPR teams operating in highway rest stops should be for informational purposes only. Should TSA VIPR teams attempt to search truckers or bus drivers, their vehicles or property, those drivers should refuse the search and gather all the relevant information from the TSA Officers, then contact the agency regarding the unwarranted search in a public area.

 

Should anyone be forced to submit to a TSA VIPR search through threat, intimidation or be arrested or denied boarding as the result of refusing to submit to a TSA VIPR team in a non-airport environment I would strongly advise them to contact the ACLU and an attorney to take legal action against the TSA.

 

Until the TSA’s operational presence in undefined areas is defined in such a way that transportation security and the law are balanced the agency needs to reign in its violation of the Fourth Amendment.

 

Our job in the Department of Homeland Security is to protect the United States and we do this by upholding the Constitution and The Law Of The Land.

 

[Name Withheld At Request Of Author]

Office of the General Counsel

Department of Homeland Security

 

Well folks … there you have it, the opinion of a Department of Homeland Security attorney on the Transportation Security Administration’s Visible Intermodal Prevention and Response (VIPR) teams.

 

Happy Flying!

 

@flyingwithfsh

18 Responses

  1. A letter without a name. So how does that help?

    If this DHS employee had a backbone then they would put their name on the letter.

  2. Who the HECK is directing these operations over at the TSA? If DHS legal doesn’t even with them and the TSA is doing it anyway, this is the definition of a rogue agency.

  3. RB,

    If the DHS attorney had allowed their name to be used they would face significant legal ramifications. The DHS has strict guidelines on what those working for the agency can discuss in public … this email to me was well outside those guidelines.

    That said, it takes a considerable backbone to contact any journalist regarding certain DHS & TSA topics trusting that your request for anonymity will be honoured. This is how I have gotten my hands on multiple TSA Security Directives and Playbook Policies, at times before they were released internally, when people ask for anonymity, which nearly every one does, make sure it is protected.

    Happy Flying!

    -Fish

  4. All of this is well and good but in my view shows what a major problem we have with the TSA and with its ability to defend the country.

    We all know that the TSA regularly abuses the trust which we put in it. It is overly legalistic and goes with extreme aggression after people who obviously pose no threat. We also know that there are a very limited number of complete nutcases at large who want to do us great damage and most of us accept that the price that we need to pay to prevent that happening is some minor intrusion on our privacy.

    I, for one, greatly object to the way the TSA interacts with me at the airport. I have never come across a worse governmental organisation, and I include the DMV in that. Having said that, I would be horrified if we didn’t have any security and I would also be horrified if there were a credible threat to blow up, for example, a major event and the government did too little about it because the expertise lay in the TSA and it could not be deployed.

    So, for me, the solution is for the TSA to behave properly, professionally and respectfully on a day-to-day basis. It should build trust with airline passengers and it should bank that trust. We will then be willing to give it our consent to protect our security elsewhere – just like we give our consent for other LEAs to operate.

  5. I guarantee you this did not come from an attorney for DHS. It doesn’t even sound right. Being familiar with DHS policies and outlook on TSA being one of this top agencies, I am sure this response is not valid.

  6. TJ,

    I have to ask … with a name like “Calvert Williams” why use the name TJ? I am curious as to your insights into the DHS as someone in the entertainment industry?

    That said, read through Flying With Fish. Take a look at the Security Directives I have published and written about, some as many as three days before they were released. Look at my info on the agency. I have covered the TSA since the day it was created … and one thing I have learned, many in the TSA and DHS do not share the agency’s public outlook.

    Happy Flying!

    -Fish

  7. It seems to me this is an issue that Congress could fix very quickly. Use the budget and legislation to make clear just what DHS can and cannot do.

  8. @ 1. RB: maybe it’s just me, but… posting anonymously to whine about anonymity?

    -ping!-

    Peggin’ the irony meter.

    Anonymity is a tactical choice. Sometimes it’s useful, sometimes less so.

  9. [...] can one just go tell them to ***, or can they still deny you to ride a train or drive your car? http://boardingarea.com/flying…sa-vipr-teams/ [...]

  10. [...] again, VIPR’s activities are legally questionable, as this memo from an anonymous Department of Homeland Security lawyer points out. And not everyone is so [...]

  11. [...] past the legally questionable aspects of the TSA’s deployment of VIPR Teams, and that some within the Department of Homeland Security (DHS) clearly believe VIPR Teams pose jurisdiction i…, the use of Federal Air Marshals within VIPR Teams poses from very real problems for the TSA.  [...]

  12. Nice legal opinion. Let me stress the word OPINION. It’s not that I disagree with this gentlemen’s principal about the practice of unlawful search and seizure; but the bottom line is that gray area means the decision of the court deciding the fate of an arrested traveler could go for or against the traveler.

    Bottom line: at the end of the day, it is you, the traveler who must decide if your willing to risk arrest AND possible conviction for refusing to comply with a search at a public location. Opinions are nice, but they don’t protect you.

  13. [...] are also those who are questioning the legality of the VIPR teams and their searches. In addition to VIPR the TSA also has a program called First [...]

  14. [...] are also those who are questioning the legality of the VIPR teams and their searches. In addition to VIPR the TSA also has a program called First [...]

  15. [...] I found this interesting post speaking of the legality of TSA’s VIPR team, read here: DHS Lawyer : Travelers Need Not Submit To TSA VIPR Teams, of course this is not an endorsement of the blog/site it’s used here for informational [...]

  16. [...] DHS Lawyer : Travelers Need Not Submit To TSA VIPR Teams [...]

  17. [...] DHS Lawyer : Travelers Need Not Submit To TSA VIPR Teams – 11.01.2011 This blogger received an email from a Department of Homeland Security (DHS) attorney which states in part: [...]

  18. Here’s the deal. They can bully you around and intimidate you and crawl up into your face and scream. They can falsely have you arrested if you piss them off. But unless the situation was especially egregious, you can’t sue any of the players.

    So you go to court but likely no charges will be filed, case dropped, or a judge and/or jury exonerates you. Think you’ve won? Think again.

    That arrest will never leave the computers — or the internet for your neighbors, friends and employers to see. $40 bucks is all it costs to learn if anyone has ever been arrested. Never mind the acquittal part. Or false arrest part. Court records can be sealed, expunged, or you can be exonerated of a crime the next day. But the arrest itself will tie a can to your tail and will clank every time you try to take a step into a new job, try to obtain a state license, or even keep your existing job. There is no way possible to mask, expunge or erase an arrest record. Period.

    So the assclown who can’t be sued or even punished gets the last laugh on you. Your arrest record puts you on the “electronic plantation” for the rest of your life .

    Have an arrest record and see how you are treated by the next cop who stops you for a traffic violation. The cop will know this before getting out of his car. He will approach you as a suspect- – not a traffic law violator.

    You could be “downsized” or let go from your job and be forced to eat dog food doing menial labor while you try for a decent job whose applications always ask if you have ever been arrested. Lie and you are toast because it’s easy for potential employers to follow up and learn the truth. By then they won’t care that all charges were dropped.

    An arrest will hurt you economically and socially and keep you forevermore on the electronic plantation.

    All thanks to some assclown TSA thug.

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