Problems with the TSA

As for the "split into smaller bottles", I think that's a brainfart on the part of the agent, at least around here you're limited to a couple 100ml containers.

Freedom and rights have never been offered on a platter. You have to fight for them. And you have to keep fighting to maintain them.

First off I want to stress: I complied 100% with TSA policy. They did not. Yes, I politely but firmly insisted on my right to privacy. That doesn't mean I have any less right to travel with medical liquids.

But… I might as well answer some of the specific issues brought up, so here goes. My apologies if I've missed something, and I'm not going to full case citations etc here in comments (sorry).

I'll try to come back later to try another summary comment, but I have to sleep (and go househunting tomorrow), so I won't be able to do point-by-point responses on everything.

1. FOIA vs lawsuits

They're separate things. I'm pursuing the policies & procedures FOIA because I think the public has a right to know what the TSA is doing, and what they demand that you do. Something as basic as their current screening management SOP is not currently public, which IMO is unacceptable.

(Not to mention that courts have found that the TSA is in violation of the Administrative Procedures Act for failing to actually give the public a say on whether to institute electronic strip searches as their primary screening tool, but that's another issue… see EPIC v TSA for that one; it's not my fight.)

I do expect that some of the documents I obtain via FOIA will also help me personal cases, but that's just a bonus. I have separate FOIA requests dealing with my own cases.

I should also note that I have not yet filed civil suit against the TSA — I'm doing what I'm supposed to, namely giving them a chance to handle it administratively first. I've done everything that I can to handle it amicably. So far, they're refusing to cooperate. Continued refusal is what would trigger a civil suit.

2. Administrative law etc

Yes, the TSA has the right to deference in interpretations of the law that it regulates. However, the Davis standard is an interpretation of the 4th amendment by the courts, one that's been repeatedly upheld, and which limits the TSA's purview. In Bierfeldt, the TSA settled — because they admitted that subjecting someone to search based on carrying a lot of money is not something they're allowed to do.

In particular, the TSA does not get to interpret the 4th Amendment; courts do. The TSA gets to interpret only their own administrative law, not to decide what is "reasonable".

I actually support the Davis standard; I agree that the TSA should have a limited exemption for administrative searches narrowly tailored to the search for weapons or explosives (and not for e.g. drugs, money, juice, documents, etc). I agree that that very narrow scope of search "reasonable", and that it doesn't require probable cause or suspicion.

However, in both of my incidents, there simply was no question of weapons or explosives. The SFO liquids had been thoroughly screened and were denied anyway; the BOS bags were x-rayed and then subjected to search of documents, which the TSA is forbidden from doing (see e.g. Aukai, Fofana, Bierfeldt).

Re. choice of law: it's arguable whether the ADA applies, but the Rehabilitation Act is more or less equivalent here. Same goes for Bivens vs 42 USC 1983. I didn't get into every legal nicety here; that's what a formal pleading is for, not a summary webpage & youtube clip. :-P

Also, this wasn't a border search — I was flying within the US. And the TSA is not authorized to search or seize anything other than weapons or explosives.

What it comes down to is simple: juice is not a weapon or explosive.

The TSA has absolutely no authority to seize it, when they are capable of telling the difference between juice and explosives, which they are (and did). Questioning me about my medical information has no bearing whatsoever on whether they can distinguish juice from an explosive, and therefore it is not permitted under the Davis standard.

3. Liquid limits

I don't think I can do anything but quote the TSA's own policy here:

"Medically necessary liquids are allowed through a checkpoint in any amount once they have been screened." http://www.tsa.gov/traveler-information/medically-necessary-...

There is no limit on medical liquids. Period. There is no ambiguity in that statement, and it's not just my interpretation.

And the Special Needs Memo says clearly that juice (and water!) is a medical liquid.

As for why I travel with 3L of liquid: it's a cross country flight. Flights get delayed; I've occasionally had to stay overnight in an airport. I need to drink on a very regular basis. I carry enough liquids with me to ensure that I'm covered for contingencies. (I also carry with me extra food, snacks, etc. I don't want to be dependent on airport concessions for things I need to stay healthy.)

Splitting it into separate 3 ounce bottles is absurd, irrational, and not something I could even do. (Who carries a bunch of empty 3 ounce bottles to drink from? O.o)

BTW, there's no such thing as a "prescription" for juice. It's doctor recommended, but you buy it in a grocery store, and you buy whatever sort you prefer. I happen to prefer aloe vera 'cause it's soothing.

4. Is juice medical for me?

Frankly, that's none of your business. And it sure as hell isn't the TSA's. They aren't HIPAA compliant, medically trained, or anything of the sort. Their job is simply to screen for weapons, not to determine medical necessity.

I did discuss this with my actual neurologist, who did recommend that I have juice on hand.

Why aloe juice in particular? My three favorite juices to travel with are aloe juice, Odwalla Superfood, and strong ginger beer. I find that they help alleviate side effects like nausea, while ensuring that I have about the right amount of sugar in easy form. I don't claim that any of them are specifically anticonvulsants or the like; they're just the juices I prefer to use.

5. Why not just give up my liquids and/or tell them medical info?

Because it's a violation of my 4th amendment rights, and because the law (including TSA rules) do not require me to do so. (Not to mention, they're not HIPAA compliant…)

I tried to be extremely polite throughout, even though I was pretty angry. I don't think that yelling helps anything. But there's a big difference between being polite, and giving in to an unlawful demand.

I don't believe that I should have to give up my privacy or my ability to bring with me liquids of my choice. Their job is simply to make sure that what I bring isn't an explosive, and I totally support that. If they want to x-ray, ETD, LCS scan, whatever, I'm perfectly cool with it.

What I'm not cool with is the intrusive questions or the seizure of something that's not a weapon.

Yes, I could probably have gotten through this situation easier if I had just given up my right to privacy. But I would rather change the system by standing up for all my rights, so that nobody has to get harassed and coerced, than get by one particular incident.

Yes, under the law they're allowed to ask — just like cops are allowed to "ask" to search your car and you're allowed to tell them "no". I find both "requests" to be offensive attempts to intrude on someone's privacy, and I choose to say no.

Honestly, I shouldn't have to even out myself as disabled in the first place, let alone be subjected to medically ignorant scrutiny about the legitimacy of my disability or the things I use to alleviate it.

They can and should simply test whether or not my stuff is dangerous.

6. Covenant

Yes, the people screening me up through the assistant manager were all Covenant employees. TSM Smith was not, nor was DFSD Adams.

Regardless, they are TSA agents, uniformed as such (co-branded with Covenant) and with all the same duties / responsibilities. There are some minor technical differences about how it falls out legally, but it isn't really relevant to any big picture questions, so I didn't bother to mention it.

7. Looking for a fight?

As I mention on the website, I've had similar things happen to me many times before. This time I came prepared to document it.

I followed the letter of the law, I was courteous. I demanded that they follow the law too.

I don't think that in any system that truly obeys rule of law those actions should be considered "looking for a fight". If they obeyed the rules, there would have been no problem. They didn't. My response to that was as measured as it could be without giving up my rights.

Cheers, Sai

Nowadays I only fly to the US if I absolutely have to. Being treated as if you're a criminal and having seen how the US border control shouted at a woman in a wheelchair and made her cry was enough for me to choose other holiday destinations in the future, where you are more welcomed as a tourist.

This is incompatible with juice just being silly - unless they test both the prescribed liquid and the juice for absence of explosives, they have no way of knowing that the liquid in a prescription bottle is in fact a prescribed liquid.

Do you think terrorists just wouldn't think of labeling their mythical liquid explosives? Or do you implicitly believe that defying authority is what is "silly"?