John Tyner, heretofore an anonymous blogger, is now a public celebrity. According to Tyner, TSA forced him to submit to an invasive pat-down, which led to his now famous imprecation. Apparently, millions have seen the video he recorded of the encounter; his description of it and his several follow-up blog posts reveal much more about inherent flaws in TSA’s airport security regime.
First, he was in line for the conventional metal detector but was involuntarily ordered by TSA to submit to advanced imaging technology. Why he was removed from the metal detector line is unclear. Had Tyner been allowed to proceed through the metal detector, the incident may not have happened and, more importantly, its capacity to provoke outrage would have been diminished, if not eliminated.
Second, TSA offered Tyner the option of abandoning his flight without submitting to either the advanced imaging screen or the invasive pat down, then subsequently withdrew the offer. According to Tyner, the stated reason for this change was that TSA needed to verify that he did not possess an incendiary device. Tyner says he was told by (presumably TSA) official that if he left the airport without submitting to screening he would be subject to a civil penalty of $10,000. In a subsequent post, Tyner correctly notes that such a procedure is incongruous at best:
If the official at the end of the video thought I had an incendiary device, why would he want me to go *back* into a small area crowded with hundreds of people instead of leaving the airport as quickly as possible?
Third, TSA personnel apparently are unwilling or unable to exercise discretion in traveler-friendly ways. Tyner says he offered to be screened by conventional x-ray “as over 80% of the rest of the people were doing.” Apparently none of the TSA supervisors who were called in had the authority or the wisdom to accept this compromise.
Fourth, some TSA personnel apparently abuse their authority if that’s what is needed to secure compliance. Tyner says he was threatened with a $10,000 fine for leaving the security zone, even though he was ordered to do so by TSA:
I began to make my way to the stairs to exit the airport, when I was approached by another man in slacks and a sport coat. He was accompanied by the officer that had escorted me to the ticketing area and [San Diego Transportation Security Manager] Mr. [David] Silva. He informed me that I could not leave the airport. He said that once I start the screening in the secure area, I could not leave until it was completed. Having left the area, he stated, I would be subject to a civil suit and a $10,000 fine. I asked him if he was also going to fine the 6 TSA agents and the local police officer who escorted me from the secure area. After all, I did exactly what I was told. He said that they didn’t know the rules, and that he would deal with them later. They would not be subject to civil penalties. I then pointed to Mr. Silva and asked if he would be subject to any penalties. He is the agents’ supervisor, and he directed them to escort me out. The man informed me that Mr. Silva was new and he would not be subject to penalties, either. He again asserted the necessity that I return to the screening area. When I asked why, he explained that I may have an incendiary device and whether or not that was true needed to be determined. I told him that I would submit to a walk through the metal detector, but that was it; I would not be groped. He told me that their procedures are on their website, and therefore, I was fully informed before I entered the airport; I had implicitly agreed to whatever screening they deemed appropriate. I told him that San Diego was not listed on the TSA’s website as an airport using Advanced Imaging Technology, and I believed that I would only be subject to the metal detector. He replied that he was not a webmaster, and I asked then why he was referring me to the TSA’s website if he didn’t know anything about it. I again refused to re-enter the screening area.
The anecdote suggests that the (presumably TSA) agent dressed in “slacks and sports coat” was either improperly informed of the actual policy or he misrepresented that policy to Tyner for the purpose of extorting his cooperation. TSA’s civil enforcement policy is summarized ambiguously on the TSA’s website, and the text of the policy directive reveals no infraction that results in a $10,000 fine, nor any penalty whatsoever for leaving the airport rather than submitting to screening. (See Section VI.)
Tyner’s account of what happened next supports the inference that the unidentified “slacks and sports cost” agent abused his authority by threatening Tyner with punitive sanctions TSA could not legally impose:
The man [in slacks and sports coat] asked me to stay put while he walked off to confer with the officer and Mr. Silva. They went about 20 feet away and began talking amongst themselves while I waited. I couldn’t over hear anything, but I got the impression that the police officer was recounting his version of the events that had transpired in the screening area (my initial refusal to be patted down). After a few minutes, I asked loudly across the distance if I was free to leave. The man dismissively held up a finger and said, “hold on”. I waited. After another minute or so, he returned and asked for my name. I asked why he needed it, and reminded him that the female supervisor/agent had already taken a report. He said that he was trying to be friendly and help me out. I asked to what end. He reminded me that I could be sued civilly and face a $10,000 fine and that my cooperation could help mitigate the penalties I was facing. I replied that he already had my information in the report that was taken and I asked if I was free to leave. I reminded him that he was now illegally detaining me and that I would not be subject to screening as a condition of leaving the airport. He told me that he was only trying to help (I should note that his demeanor never suggested that he was trying to help. I was clearly being interrogated.), and that no one was forcing me to stay. I asked if tried to leave if he would have the officer arrest me. He again said that no one was forcing me to stay. I looked him in the eye, and said, “then I’m leaving”. He replied, “then we’ll bring a civil suit against you”, to which I said, “you bring that suit” and walked out of the airport.
TSA’s regulations applying to passengers are found at 49 USC 1540.107. There is no regulation requiring passengers to be screened if they choose to leave the airport rather than submit to screening:
1540.107 Submission to screening and inspection.
(a) No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.
(b) An individual must provide his or her full name, as defined in §1560.3 of this chapter, date of birth, and gender when—
(1) The individual, or a person on the individual’s behalf, makes a reservation for a covered flight, as defined in §1560.3 of this chapter, or
(2) The individual makes a request for authorization to enter a sterile area.
(c) An individual may not enter a sterile area or board an aircraft if the individual does not present a verifying identity document as defined in §1560.3 of this chapter, when requested for purposes of watch list matching under §1560.105(c), unless otherwise authorized by TSA on a case-by-case basis.
[73 FR 64061, Oct. 28, 2008]
It is possible that TSA has a policy requiring passengers to submit to screening, as perhaps the “slacks and sports coat” agent implied, though we cannot find one on TSA’s web site. In any case, agency policies cannot create civil violations that are not supported by duly promulgated agency regulations. Tyner’s account of the private conversation among the TSA officers indicates that they were unsure what to do because Tyner was refusing to submit to their orders. When Tyner decided to leave the airport, they did not make any effort to prevent him from doing so — except to threaten him again with a $10,000 civil fine.