TSA Malfeasance and Travel Privacy

Regulatory Authority

Papers Please / Identity Project (papersplease.org) argues TSA conducts screening without valid regulations. TSA relies on Security Directives and Emergency Amendments — non-public orders — rather than properly promulgated regulations under the APA (notice-and-comment rulemaking).

EPIC v. DHS (D.C. Circuit, 2011): Court ruled TSA violated APA by deploying body scanners without notice-and-comment period. Ordered TSA to conduct one. TSA delayed compliance for years.

REAL ID Act (2005)

Sets federal standards for state IDs accepted at TSA checkpoints. Papers Please: no federal statute or regulation requires passengers to show ID to fly; underlying Security Directives mandating ID checks never published or subject to public review. Full enforcement repeatedly delayed (current deadline extended to 2027).

No-Fly and Selectee Lists

Latif v. Holder (D. Oregon, 2014): Judge Anna Brown ruled government’s no-fly list redress process violated due process — individuals not told why listed, no meaningful opportunity to challenge.

Ibrahim v. DHS (N.D. Cal., 2014): Stanford scholar placed on no-fly list because FBI agent checked wrong box on form.

Elhady v. Kable (4th Circuit, 2019): Terrorist Screening Database redress procedures constitutionally inadequate.

SPOT Program (Behavioral Detection)

GAO reports (2013, 2017): no scientific evidence behavioral indicators reliably identify threats. TSA spent over $900 million on SPOT with no evidence of effectiveness (GAO, 2013). ACLU documented racial profiling complaints at Boston Logan. Program scaled back, never formally ended.

Body Scanners

EPIC v. DHS (D.C. Circuit, 2011): TSA violated APA but court declined to vacate program. Early backscatter X-ray machines stored detailed images; TSA transitioned to millimeter-wave with generic outlines after backlash.

Documented Overreach

Phil Mocek (2011, Albuquerque): Acquitted after arrest for filming TSA checkpoint and refusing to show ID. Arrest found to lack legal basis. Papers Please documented and supported defense.

Tobey v. Jones (4th Circuit, 2013): Aaron Tobey could sue TSA agents who detained him for displaying Fourth Amendment text on his chest. First and Fourth Amendment claims allowed to proceed.

Gilmore v. Gonzales (9th Circuit, 2006): Challenged secret ID requirement. Court ruled ID-or-search policy constitutional but acknowledged underlying directive was secret.

No-Fly List and Terrorist Screening Database

Structure

• TIDE (Terrorist Identities Datamart Environment): Master database maintained by NCTC. ~1.6 million people as of February 2017. US persons (citizens + LPRs): ~16,000.
• TSDB (Terrorist Screening Database): Subset of TIDE, maintained by FBI’s Terrorist Screening Center. ~420,000 identities (as of earlier reporting); grew to 1+ million by 2021 (per Fourth Circuit in Elhady).
• No Fly List: Subset of TSDB. Persons barred from boarding aircraft.
  • 2006: ~44,000 names (CBS/60 Minutes obtained copy)
  • 2011: ~10,000 names
  • 2016: ~81,000 (Sen. Feinstein disclosure)
• Selectee List: Subset of TSDB. Persons subjected to enhanced screening.

False Positives

• One major US airline recorded 9,000 false positives per day (DHS Secretary Chertoff).
• Children under age five, and some under age one, have generated false positives.
• Senator Ted Kennedy stopped and questioned at airports five times in March 2004. Name “T. Kennedy” matched an alias on the selectee list. TSA stated Kennedy was NOT on no-fly or selectee lists but was “misidentified.” DHS Secretary Ridge personally apologized; delays stopped early April 2004. Source: https://www.nbcnews.com/id/wbna5765143
• Congressman John Lewis repeatedly flagged by the watchlist.

Redress Process

DHS Traveler Redress Inquiry Program (TRIP): individuals who believe they are misidentified may submit an inquiry. Individuals may be barred from travel or subject to enhanced screening until cases adjudicated. No timeline guaranteed. Not told specific reason for listing. Cannot see or challenge underlying evidence.

Key No-Fly List Cases

Latif v. Holder (D. Oregon, 2014) Judge Anna Brown: government’s no-fly list redress process violated due process. Individuals not told why they were listed, no meaningful opportunity to challenge.

Ibrahim v. DHS (N.D. Cal., 2014) Stanford scholar Rahinah Ibrahim placed on no-fly list because FBI agent checked wrong box on a form. Took years of litigation to resolve.

Elhady v. Kable — District Court (E.D. Va., September 4, 2019) Judge Anthony Trenga: TSDB watchlisting process unconstitutional. Fails to provide sufficient procedural due process. Violates Administrative Procedures Act. Absence of pre- or post-deprivation hearing coupled with “sham administrative grievance process.” Recognized high reputational costs to Muslim plaintiffs. Source: Elhady v. Kable, 391 F. Supp. 3d 562 (E.D. Va. 2019)

Elhady v. Kable — Fourth Circuit (March 30, 2021) Reversed district court. Upheld constitutionality of TSDB. Joined Sixth and Tenth Circuits in upholding terrorism watchlists. Source: https://www.lawfaremedia.org/article/case-summary-fourth-circuit-upholds-terrorism-watchlist-database Source: https://www.gwlr.org/elhady-reversed-the-implications-of-judicial-deference-for-government-watchlist-plaintiffs/

FBI v. Fikre, 601 U.S. ___ (2024) Yonas Fikre, US citizen, placed on No Fly List. At US embassy visit, FBI agents informed him he could not return to the US; offered removal from list if he agreed to become informant and report on members of his Portland mosque. Supreme Court (unanimous): Fikre’s lawsuit is not moot; may proceed in lower courts despite government’s claim it removed him from the list. Source: https://www.supremecourt.gov/opinions/23pdf/22-1178_p8k0.pdf

Kashem v. Barr (9th Circuit, ongoing) ACLU challenge to No Fly List criteria as impermissibly vague and redress process as failing to provide due process required by Fifth Amendment. Source: https://www.aclu.org/cases/kashem-et-al-v-barr-et-al-aclu-challenge-government-no-fly-list

Key Cases Summary

Sources

• papersplease.org (Identity Project)
• GAO reports on SPOT (2013, 2017)
• ACLU documentation
• NCTC TIDE factsheet (February 2017)
• Case law as cited
• https://en.wikipedia.org/wiki/No_Fly_List