Dear TSA, My Football Preferences and Vacation Plans are None of your Business: A First-Hand Experience With the TSA’s “Chat-Downs”
I was scheduled to return from my summer vacation at 6 a.m. Sunday morning flying out of Vermont’s Burlington International Airport in a state most often thought to be ahead of the civil liberties curve. If you’ve ever had a crack-of-dawn flight, you can relate to my blurry eyed exhaustion after waking up at 3:30 a.m. to make it to the airport with enough time for what we now consider to be the standard, if annoying, airport security rigmarole. I expected to have to strip off my belt and sweatshirt, take off my shoes, show my ID, and be subjected to a naked body scan or all-too-personal pat down. What I didn’t expect was a full-on TSA interrogation about my summer vacation before I even reached the identification checkpoint.
That morning the security line was far longer than usual; my husband and I slowly snaked along the line dividers as folks began pulling out their toothpaste and laptops. As we got closer to the front of the line, I noticed a TSA agent stationed in front of the ID check, just outside of the line dividers, with no apparent assignment other than to chat with the waiting passengers.
As we inched closer, I heard the chatty agent try to strike up a conversation with the man in front of us about his New England Patriots sweatshirt. “Hey, the Pats are playing in a preseason game with the Eagles on Monday, huh? I’m an Eagles fan myself.” In classic New England style, the questioned passenger shrugged disinterestedly, muttered “whatever,” and shuffled along. (I say this as New Englander myself.) My first thought was, “what a rude way to treat this poor agent who is just trying to do his job.”
The agent then turned to me with grin that was a bit perky for even my taste given the early hour. “So where are you folks off to?” he energetically inquired.
I like to think that I’m a friendly person, so I answered him, expecting a brief innocuous exchange about the Washington DC heat and the scourge of Capitol Hill gridlock. Instead, the agent responded to my answer with a barrage of questions about where in Vermont we had stayed, how long we had traveled, and why we had traveled there. I could feel a suspicious expression involuntarily creep across my face. The New Englander inside me was screaming “you don’t know this person from a hole in the wall and you certainly don’t want to divulge to him the details of your family vacation!” And yet it seemed that the more discomfort I expressed, the more persistent the agent’s questioning became, following us down the line, grilling me unrelentingly about our vacation plans and baggage status.
When we finally passed through security, I turned to my husband and asked, “What on earth was that all about?” My husband shrugged and suggested that perhaps the agent was just a chatty guy. To me it felt entirely inappropriate and intrusive.
It was only after I fully reentered the world of easy Internet access that I saw that while I was on vacation I had missed a news breaking about the “controversial” use of "behavioral officers" at Logan Airport in Boston, Massachusetts. I don’t work on airline security issues for the ACLU, so I hadn’t known about this program. According to the Times, “behavioral assessments” were being used at Logan not only to scan the lines of passengers for unusual activity, but also to “speak individually with each passenger and gauge their reactions while asking about their trip or for other information." Sound familiar? And it turns out that this airport “assessment” procedure is not only an inappropriate invasion of privacy, as I experienced. According to U.S. federal officials, it’s also leading to increased racial profiling, in part in response to managerial pressure to meet certain threshold referral numbers. Of course, many minority communities have been suffering discriminatory secondary checks and unjustified delays at airports for years.
Apparently it’s not enough for TSA to examine every inch of our bodies and personal effects; they are now asserting the right to search our conscience through pre-boarding cross-examinations. And to what end? The Government Accountability Office concluded in a that no behavioral detection program has ever been scientifically validated. There is also considerable doubt among about the usefulness of the methodology with behavioral researchers asserting that TSA agents “would achieve similar hit rates if they flipped a coin."
To be clear, I have nothing but respect for friendly TSA agents who do their best to make the security experience more tolerable by making small talk with impatient passengers. I have nothing but smiles for the ID checker that cracks a joke about my license picture or the enormity of my carryon. But there is a world of difference between friendly small talk and unwelcome interrogation about my personal business. I never want to have to second-guess my travel plans and itinerary or consider how they might appear to a government agent.
I won’t be volunteering any more personal information to the next TSA agent that interrogates me while I’m in line for airport security. The next time I encounter a TSA “behavioral officer” I intend to invoke a tried and true New England adage that served my ancestors well: Mind your own business.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.