Once again as before trying to legislate by press release and blog posting, the TSA has asserted that it has the general law-enforcement authority to detain would-be airline passengers, seize their possessions, and compel them to answer questions — for reasons entirely unrelated to aviation or security, and even when it cannot articulate any probable cause for a belief that any law has been violated.

These new assertions come in response to an incident in which a passenger attempted to bring a locked metal cash box as part of their carry-on baggage on a domestic flight. Since the box was opaque to x-rays, the TSA staff at the checkpoint at Lambert Airport in St. Louis asked the traveler to open the box so that they could check whether it contained any prohibited or dangerous items, and took him into a private room to do so.

So far, OK. Commenters in the TSA blog, including jewel dealers, point out that many types of valuables must be carried on (because they are exempt from airline liability if placed in checked baggage) and that they don’t want them inspected in public, where other people might learn what they are carrying.

In the back room, the traveler unlocked the box, and the TSA agents verified that it contained only cash (approximately $4,700), checks, and other documents. No weapons or explosives, and nothing even arguably prohibited, dangerous, contraband, or illegal. That should have been the end of the screening. Instead of letting the traveler go on through the checkpoint, however, the TSA then called the local police. It’s unclear if the TSA actually detained the traveler or kept custody of his cash box and its contents while waiting for the police, or if he could have left the airport (with or without his money and checks) before the police arrived, but it’s clear that they wouldn’t have allowed him to continue past the checkpoint to his flight.

Once the police arrived, the police and the TSA together informed the traveler that he was under detention and not free to leave, and interrogated the traveler about his employment, the reasons for his trip to St. Louis, the ownership and source of the money and checks (which in fact were the proceeds from a political event, which thus contained information protected by the First Amendment about acts of assembly and association by the writers of the checks), and other issues unquestionably unrelated to weapons, explosives, or aviation security.

The traveler responded to each of these questions, calmly and politely, by asking, “Am I required by law to answer that question?” None of the TSA staff or police would answer this question, nor have they subsequently done so. Instead, they told him that possession of cash and failing to answer their questions was “suspicious”, and threatened to keep him under detention and “take him downtown” to be questioned further by the Drug Enforcement Administration (DEA).

After about 25 minutes, and after some conversation out of his hearing between the agents and an unidentified person in plain clothes, the traveler was told he was free to go. He made his plane, with his cash box and its contents.

We know all this because the traveler, Steve Bierfeldt, covertly recorded all but the start of the incident on his iPhone. There’s more about the incident, including interviews with Mr. Bierfeldt, in these reports from Fox News and the Washington Times. And in case you are wondering, the incident occurred in Missouri, where the law permits any party to a converstion to record it, even without the knowledge or consent of the other party or parties.

But the worst thing isn’t what the TSA did, but what it has subsequently claimed it has the right to do, and to compel would-be travelers to do. According to the TSA blog:

Movements of large amounts of cash through the checkpoint may be investigated by law enforcement authorities if criminal activity is suspected. As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions about their property, including why they are carrying a large sum of cash. A passenger who refuses to answer questions may be referred to appropriate authorities for further inquiry.

In effect, the TSA is now claiming that they have general authority to:

Conduct searches not limited to a search for weapons, explosives, or dangerous items . (This is implicit in the failure to desist from the search once it had been confirmed that the cash box contained only cash, checks, and documents, not weapons, explosives, or any items that could conceivably pose any danger to aviation.) Detain would-be travelers, and/or prevent them from proceeding through checkpoints, even in the absence of any evidence whatsoever of a danger to aviation. Compel travelers, as a condition of passage through the TSA checkpoint and travel by common carrier, to answer questions, apparently without limit and including questions clearly unrelated to aviation security.

Carrying cash in any amount, we should say from the start, is entirely legal. There is a Federal law against carrying (1) more than $10,000 (the police and/or TSA continued to detain Mr. Bierfeldt after counting the $4700 in his possession) (2) across the US border in or out of the country (Mr. Bierfeldt had a boarding pass for, and was attempting to board, a domestic flight), (3) without having declared it on a specified form to the Department of the Treasury (which the TSA and police had no way to know if Mr. Bierfeldt had done, didn’t ask him about, and gave no indication that they had tried to find out). In any event, this law is not policed or enforced by the DEA or the TSA.

What about the TSA’s claim that “As a general rule, passengers are required to cooperate with the screening process. Cooperation may involve answering questions”? In fact, there is no such “rule” in any publicly-disclosed law or regulation, nor any other law or regulation that gives the TSA general authority, at checkpoints or anywhere else, for warrentless search, detention, or compelled response to interrogation.

With respect to searches and denial of transportation, Federal law at 49 USC 44902(a) allows an airline to refuse to transport:

(1) a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or (2) property of a passenger who does not consent to a search of the property establishing whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance.

In addition, 49 USC 44902(b) authorizes the denial of transportation to anyone or anything “inimical to safety”.

Nothing in either of these sections purports to grant any authority for search, to require consent for search, or to authorize denial of tranportation, except on the basis of safety. There is simply no question that even if — in their incompetence — the TSA agents who called in the police had an erroneous but good-faith belief that there was any law against carrying cash, that had noting to do with safety. At that moment, they had no authority to detain the traveler or prevent him from continuing through the checkpoint or boarding his flight.

TSA arrest authority derives from 49 USC 44903(d)(2):

[The] Secretary of Transportation may authorize an individual who carries out air transportation security duties– (2) to make arrests without warrant for an offense against the United States committed in the presence of the individual or for a felony under the laws of the United States, if the individual reasonably believes the individual to be arrested has committed or is committing a felony.

(Under the laws creating the TSA and DHS, this and other portions of the authority of the DOT and the Secretary of Transportation were transferred to the TSA, DHS, and the Secretary of Homeland Security.)

Under this section of law, TSA agents only have the authority to detain a traveler if they reasonably believe that the person either has committed a Federal crime in their presence, or has committed or is committing a Federal felony.

For the TSA to claim — as they now have — that the detention was justified, implies that they think (1) that mere possession of $4700 in cash, coupled with the exercise of the Fifth Amendment right to remain silent, actually led the TSA agent(s) who called the police to believe that Mr. Bierfeldt had committed a Federal felony, or was committing a Federal crime in their presence, and (2) that such a mistaken belief was nevertheless, depite its falsehood, objectively reasonable.

It’s conceivable, although unlikely, that the agent(s) had such a belief. But such a flagrantly erroneous belief, on the part of TSA officers, about what possessions are legal, and about the right to remain silent and the inferences which may permissably be made from the exercise of that right, cannot and should not be considered “reasonable”.

As for TSA authority to compel responses to interrogatories, Federal regulations at 49 CFR 1540.107 require that “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.” But “submitting” is a purely passive act, and the language clearly implies that screening is a physical act applied to objects (“person and accessible property”). It would be a strained reading of this regulation, and one that extends it beyond its statutory authority, to read mere “submisison” as including an affirmative obligation to respond to interrogatories.

49 CFR 1540.109 sets penalties for “interfering” with screening personnel. But it would be equally strained (and equally without statutory authority or Constitutionality) to define the exercise of the Fifth Amendment right to remain silent as “interference” subject to legal sanctions, especially if the purported basis for the interrogation was a suspicion of criminal activity.

In issuing this regulation, the TSA specifically stated (67 FR 8344, February 22, 2002) that, “This rule does not prevent good-faith questions from indivuduals seeking to understand the screening of their persons or their property.” Mr. Bierfeldt repeatedly told the officers detaining and interrogating him that he “didn’t understand the law” and was seeking their help in understanding whether he was legally obligated to answer their questions.

In upholding this regulation against a First Amendment challenge in 2005, the 6th Circuit Court of Appeals in its decision in Rendon v. TSA (424 F.3d 475) relied on this statement accompanying the issuance of the regulations, and on the fact that the traveler in that case, unlike Mr. Bierfeldt, had not confined himself to such questioning but had also engaged in “disruptive” shouting of expletives.

The issue of TSA interrogations has been an issue since the TSA began its SPOT program, and this isn’t the first time travelers have been required to answer questions from the TSA and/or police (unrelated to weapons, explosives, or prohibited items) before the TSA would allow them to exercise their right to travel.

To date, courts reviewing TSA actions have assumed that TSA searches were limited to searches for weapons, explosives, or other threats to avaition security. Most recently, for example, the 9th Circuit Court of Appeals ruled in 2007, en banc, that “the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ] [and] that it is confined in good faith to that purpose.'” (USA v. Aukai, quoting US v. Davis, 9th Cir. 1973, 482 F.2d at 913). We are unaware of any case law on the obligation to respond to TSA interrogation (or police or third-party interrogation) as a condition of passage through a TSA checkpoint.

We encourage those subjected to these new assertions of broader TSA authority to stand up for their rights.