Tocqueville Miles & Points has always been an advocate of the natural rights and the Rights noted in the US Constitution and its first ten amendments, The Bill of Rights. Recently, readers have sent Tocqueville many examples of the TSA infringing on those rights. We have already published a generalized article on why the TSA is immoral, illegal, and nothing more than Security Theater. And the “TSA Security Theater” Tumblr continues to receive frequent posts. However, there are new developments to report in the TSA’s infringement of citizens rights.
Filming and videotaping when on public property is free speech. There is no federal law prohibiting this and the First Amendment validates that Congress shall pass no law that infringes on the Freedom of Speech and the Freedom of Press. What is interesting, as pointed out by Judge Andrew Napolitano, is that the founders chose to use the word “the“. “The Freedom of Speech”. “The Freedom of Press”. This demonstrates that these freedoms, like the other natural rights, existed before the US government existed. They were already there, and Congress is not to mess with them. The entire purpose of our government is to ensure that no individual, entity, or the government itself infringes on such rights. The “Know Your Rights: Photographers” section of the American Civil Liberties Union outlines this:
Your rights as a photographer:
When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them).
Police may not delete your photographs or video under any circumstances.
Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.
This brings us to the TSA. Courts have ruled that TSA checkpoints are public places. I believe this is mainly because by ruling them “public”, it grants the authority, rightly or wrongly, to conduct searches and screenings on the general public. To me this violates the 4th amendment right to be left alone (another natural right), after all, where are the warrants? Why can’t I decline consent to a search and still travel freely on my way as an honest citizen? And what is the value of the natural right to travel in public freely without having a “papers please” checkpoint? However, as many readers have pointed out, the TSA hates being filmed by the private citizens they are screening. Which is ironic since they are filmed 100% of the time by surveillance cameras by the local government. But it is the private citizens for which the TSA has disdain. Countless examples have been posted on the internet of the TSA telling private citizens to turn off their camera or to respond aggressively to these citizens. Just a few captured by the TSA Security Theater blog or reposts onto YouTube here, here, and here.
Filming the TSA is all the more important especially given the thefts and contempt they show for passengers rights and property. This has been recently showcased in the TSA Agent’s Confessional, “Dear America, Yes I saw you naked, and yes we were laughing”. Who will watch these watchmen?
Tocqueville Miles & Points has solicited comment from the TSA about the chilling of free speech demanded by these TSA agents asking or demanding that cameras be turned off. We have contacted Jim McKinney via twitter (@TSAMedia_JimM), TSA Public Affairs spokesperson. After sharing with him some of the videos linked above, McKinney said to tell our readers to always ask to speak to a supervisor if you feel you are being asked to turn off your camera inappropriately. Here is the exact Twitter dialogue:
This brings us to a recent reader submission from a reader who wishes to share their story anonymously. They have been making photos and video intermittently at the Charlotte TSA Terminal A checkpoint. The anonymous reader claims he never disrupts the screening process and is not filming the x-ray monitors or other passenger personal information. His videos that Tocqueville Miles & Points has reviewed validates he is neither interfering with the screening or capturing TSA security monitors. The TSA’s own rules validate that this is the correct approach to film the screening checkpoints. In a TSA website post entitled, “Taking Pictures at the Checkpoint” the TSA notes:
TSA does not prohibit the public, passengers or press from photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or slowed down. We do ask you to not film or take pictures of the monitors. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances might.
Taking photographs may also prompt airport police or a TSA official to ask what your purpose is. It is recommended that you use the Talk To TSA program on tsa.gov to contact the Customer Support Manager at the airport to determine its specific policy. Or, if you are a member of the press, you should contact the TSA Office of Public Affairs.
About a month ago, he captured video of Charlotte TSA Agent McFadden screening a passengers bag. TSA Agent McFadden asked him to stop filming as a “personal, person”. The anonymous reader declined to stop filming to the frustration of Agent McFadden who said “The LEOs (Law Enforcement Officers) are on their way.” The reader waited but no police ever arrived so he left the scene.
Last week this same reader was again filming agent McFadden at the TSA checkpoint. The reader had already cleared security and was standing outside of the security checkpoint in the Concourse A hallway next to a trash can while filming. Agent McFadden pointed the reader was filming and immediately got the attention of his supervisor, 12-year Veteran and TSA 3-Stripe Supervisor Monroe. This reader, noting McKinney’s response to “always request a supervisor if needed” expected Supervisor Monroe to validate that the reader was allowed to film the TSA checkpoint and agent McFadden since he was neither impeding with the screening process nor filming the x-ray monitors or personal information. The 30 seconds of dialogue is captured here: http://tsasecuritytheater.tumblr.com/post/77699726140/cant-video-tape-says-monroe-clt-a-checkpoint
As seen from the video, agent Monroe first asks, “Why are you videotaping my checkpoint?” The reader asks, “Can’t you videotape in a public place?”. Monroe, responds, “no”. The reader further inquiries, “So it is against TSA rules for me to be filming right now?” Monroe, “yes”. Reader: “Are you certain?” Monroe, “positive”. The reader then notes Monroe’s name and the checkpoint location while Monroe tries to block the camera from capturing his name and/or badge number information. Not seen on camera Monroe later, while on duty, actually pulls out his camera to take a personal picture of the anonymous reader in retaliation.
Immediately afterwards, the reader has informed Tocqueville Miles & Points that he then showed a print-out of the TSA’s “Taking Pictures of the Checkpoint” document from the website to Monroe as part of his request to continue to film. Monroe responded, “I don’t care what it says”.
The Charlotte Airport TSA Director, Omar Reece, was then called to the scene. He validated to the reader that it was indeed legal for the reader to film the TSA checkpoints as long as the reader was not impeding the screening process and not capturing “SSI” information. It was encouraging to see at least the TSA Airport Director understood the TSA’s own rules. Let it also be noted that the reader claims while filming he noticed people dressed in plain-clothes being screened by the TSA agents every so often, including pat-down procedures. These plain-clothes people, however, after being screened didn’t go on their way like most passengers, but stuck around and chatted with the agents at length. The reader asked TSA Director Reece if these were his employees just doing drills or routines in plain clothes. Reece responded that, “they are not TSA Officers from Charlotte airport, I don’t recognize them. If they are TSA they are from Washington.” The reader asked Reece, “could they be agents from a different government bureau like the FBI, DHS, or CIA?” Reece responded, “yes”. So let it be noted that there are now plain clothes government agents participating in the TSA screening as props, running drills, or doing intelligence gathering on private citizens. Other sources at the Charlotte TSA also noted to the reader that Monroe has been on the job since 2002 and that he started as a standard screener and worked his way up to supervisor. Monroe never apologized to the reader, even in the presence of Director Reece, for being so categorically wrong about the prohibitions of filming the airport checkpoint.
After capturing the video of Monroe informing this private citizen unequivocally that he could not film at the TSA checkpoint (which is certainly in violation of the citizen’s free speech, free press rights and also puts the TSA at liability for infringing on the rights of citizens under the color of the law) the reader shared it with us. We went back to TSA Public Affairs spokesperson McKinney with the video. Here is the correspondence, including his response:
What a challenging web for private citizens to follow just to enjoy their natural rights at the hands of government checkpoints. During the first interaction with McFadden, McKinney instructs Tocqueville Miles & Points to ask for a supervisor should his readers feel like they are being asked to stop filming inappropriately. During the next interaction as documented by members of the reader base, the reader asks for a Supervisor, gets 3-stripe 12 year veteran Monroe and his told categorically that he cannot film at his checkpoint. When this is shown to McKinney, he suggests the next step in the escalation process is to contact the TSA formally via their “Talk to TSA” webform.
It is at this point one might expect as appropriate and professional an apology from the TSA, or even agent Monroe. After all, he, on videotape, clearly is not familiar with the TSA’s own rules and regulations as it pertains to passenger rights.
The response was disheartening:
Nowhere in this response does the TSA admit guilt, show remorse, seem apologetic, or show concern for passengers rights’ infringement. It is a classic stonewall, “nothing to see here, move on citizen”. If this were a private company and the company made a mistake, it would profusely apologize to make it right to not lose a customer of have its reputation tarnished leaving it in a less competitive situation. However, the TSA has no competitors and it is unlikely this reader will ever get an apology from the TSA or Agent Monroe. Will Agent Monroe face disciplinary action? According to Charlotte TSA Director Reece via the anonymous reader, “disciplinary action will be taken”. This remains to be seen. Will this be a slap on the wrist? Or will the TSA take violations of citizens natural rights to be an egregious offense? Regrettably our instincts tell us there will be no fundamental change in the behavior of the TSA.
TSA Spokesman McKinney has not yet been solicited by Tocqueville Miles & Points for his next suggested recourse since his suggested actions of “appealing to a Supervisor” and “submitting a complaint to Talk to TSA” don’t seem to be yielding any progress. Yes it is good that the Supervisor’s Supervisor, Omar Reece from Charlotte Airport, affirmed filming is allowed. But what to do when agents continually tell you that you cannot film? Is it civil disobedience to violate an order from a federal agent that you feel is unjust? We will share any response from McKinney as we receive it.
All this begs the question, if the TSA doesn’t prevent filming in a public place, why do so many of their supervisors and line staff immediately respond to these interactions with “TURN YOUR CAMERA OFF?” One reader brought to our attention four examples he or she personally filmed of the TSA instructing him to turn the camera off in less than one month’s period. When will it change? Will it ever change?
Tocqueville Miles & Points will continue to follow incidents of citizens having their rights and dignity violated by the TSA and will report back here any updates.
Finally, here is ways that you can do your part to help ensure you hold on to your remaining freedoms which have not yet been infringed out while enduring the TSA screening process:
- Always be polite and courteous. Just because the TSA gives you ugly stares, threatens you, or gives commands which violate your rights doesn’t mean you should be ugly back. Be professional and courteous. Doing so will make them look all the more vile and evil in the eyes of the public. Readers have reported that when filming their voice gets jittery, their hands unsteady, and they get nervous. This is your body’s natural reaction when facing a threat. Some may choose to not continue to film due to this visceral reaction. Doing so in a peaceful way provides good practice for handling these situations, or for unexpected more grave “fight or flight” situations outside of the airport in the future.
- Know the State or City Laws. The vast majority of states and cities do not prohibit your natural right to videotape or be a journalist at an airport. However there are a few exceptions which operate in a Constitutional grey area. This CNN article is a great reference. We have had dozens of reader submissions of filming the TSA checkpoint and not once has a reader been detained by police or not been able to leave the scene and go about his or her business when he or she wished to. With that said, it sadly only takes one bad apple TSA agent or LEO on a power trip make your day difficult.
- Film just AFTER you’ve completed the screening process. You have every right to begin filming the TSA at any point in the screening process. The problem is, if you start right off the bat, say at the ID checkpoint, or before going through the metal detector, the TSA can immorally and easily ruin your day. They can say you were a security threat and prevent you from going through the screening process and therefore getting on the plane. The TSA cannot legally detain you in any circumstance, they can call the police who potentially could, and make you miss your flight. Therefore clear the screening process. And as you are finishing repacking your bag then begin to make your films and video. At this point you have successfully passed the screening process and film away. The TSA has no more “power” over you to screen you. We suggested standing in the public hallways where it is crystal clear your camera or the surveillance cameras can see you are not blocking or impeding the screening process. Don’t film the x-ray machines or the private rooms.
- Film often. The individual TSA agents to which we have spoken truly dislike it when you film them even though they are being filmed at all times by surveillance cameras. Much of this reason is that people value their privacy, even if they don’t have an expectation of privacy when you take a job that serves or works in public like Police and TSA. Point out the irony to them that they value their privacy just like you value your ability to travel in public without an unconstitutional search and seizure of of your 6 oz contact lens solution. We have many readers now who pull out their camera phone every time they complete a TSA screening just to capture the scene or see what interest interactions happen with agents.
- Film as recourse. If an agent was particularly rude to you, maybe barking orders loudly, not showing courtesy or sensitivity to your needs, or giving you a very intrusive enhanced-pat down, pull out your phone and take his or her picture! They will hate it, it is your right, and you may be able to warn other travelers of this agent or help get him noticed by the TSA so they can take corrective action. Don’t forget to submit your pictures and video to: http://tsasecuritytheater.tumblr.com.
- Ask Good, Open-Ended Questions. If a TSA agent engages you in a conversation at the checkpoint, ask questions as your responses. For example, if they say “Why are you filming at my checkpoint?”, you could respond with, “To what extent am I allowed to film at a TSA checkpoint, a public place?” or “why do you ask, do you have something to hide?”. Or if you wish to turn their own game back at them, you could say, “I am filming because there have been some safety and security threats at the airport. Your safety is my priority. To what extent are you concerned about these threats?” Once seasoned or confident, you could continue (although no longer open-ended, the effect and irony will be there in the response), “Since there have been reports in the area of thefts of passenger belongings, for your safety and security I’d like to screen you by giving you a pat-down. Do you consent?”