You may recall the incident a few months ago when the TSA harassed a man for carrying $4700 in cash. When questioned, the passenger, Steve Bierfeldt, refused to acknowledge the TSA’s authority to question his transportation of any sum of cash, and offered to explain the money if the agents would name the law which authorized them to question him. And he secretly taped the whole interrogation with his phone.
The ACLU (American Civil Liberties Union) took up Bierfeldt’s cause and sued the agency. The TSA has subsequently changed its rules, informing its agents that “screening may not be conducted to detect evidence of crimes unrelated to transportation security” and that “large amounts of cash don’t qualify as suspicious for purposes of safety.” In light of the policy changes, the ACLU dropped its suit.
Until very recently, the TSA defended the purpose of its interrogation of Bierfeldt (if not the unprofessional conduct of the interrogation.) In April, Francine Kerner, the TSA’s chief counsel reiterated the notion that cash is effectively probably cause for further prying. On the TSA blog, she wrote: “When presented with a passenger carrying a large sum of money through the screening checkpoint, the TSA officer will frequently engage in dialog with the passenger to determine whether a referral to law-enforcement authorities is warranted.”
The change in policy is welcome. But TSA refuses to publish the actual policy.
TSA spokeswoman Lauren Gaches said the new “internal directives” are meant to ensure their screeners are consistent. She acknowledged the policy on large sums of cash had changed, but wouldn’t provide a copy of either document. She said the directives would not be released unless a Freedom Of Information Act request was submitted by the Washington Times [the newspaper that published the change in policy following the ACLU's press release.]
I can understand that the agency may not want to release the protocols that its agents use for determining likely or unlikely threats. Some might perceive public knowledge of these guidelines as a roadmap for the bad guys to avoid a search. But in a democracy, people have a right to know what constitutes a reasonable search.
Update: I’ve contacted Stephen Dinan, the author of the Washington Times article, to see if a Freedom of Information Act request is underway. If not, I will submit one myself.
Update 2: Thanks to Stephen Dinan for pointing me toward this link (PDF) on the ACLU website. It contains one of two policy clarifications by TSA, dating to September 2009. Start on page 14. At first read, it’s disheartening, because there is enormous wiggle room for TSOs to engage in searches unrelated to airport or travel security. For example:
As a general matter, there should be no reason to ask questions of the passenger about security, although there may be times when questions are warranted by security needs.
That’s a big loophole. It’s still not clear to me how cash can be a “threat item,” to use TSA terminology. What are you going to do, throw wads of cash at fellow passengers, like a ninja with Chinese stars?
Dinan also noted that his paper has indeed filed the FOIA request for the second set of TSA directives from October 2009. I’ll look forward to the update.