A few days ago I wrote about the Transportation Security Administration’s (TSA) Visible Intermodal Prevention and Response (VIPR) teams, addressing the effectiveness and legal questionability of the TSA VIPR Program, in this post TSA VIPR Teams – Increase A Legally Questionable Failing Program.

This morning I received an email from a Department of Homeland Security (DHS) attorney, who wishes to remain anonymous, addressing the legality of the TSA’s VIPR teams searching travelers outside of an airport environment. As the TSA’s parent agency is the DHS, this email is an interesting view of how off course the TSA may be in their execution of VIPR Teams.

The following is the email I received:

Fish,

Your article the other day on the TSA VIPR program was insightful, well written and your opinion that the VIPR program is “legally questionable” hits the nail on the head. The TSA’s deployment of VIPR teams places the agency into a hazy space that has not yet been fully challenged in the courts.

Yes, the TSA is charged with protecting transportation in the United States, but its role outside of airports and in some limited capacity the railroad industry is largely undefined. The lack of definition in the TSA’s scope of authority and intrusion into a traveler’s personal possessions puts the agency in a dangerous legal position.

In your post October 29 article TSA VIPR Teams – Increase A Legally Questionable Failing Program? you cite two 9th Circuit Court cases, US v Davis and US v Pulido-Baquerizo. As you note both of these ruling are in regard to travelers in an airport environment. While the TSA makes the reasonable expectation leap that these rulings could apply to mass transit centers, the fact is that these rulings do not include mass transit centers. The legal wording is for travelers seeking to fly. In fact the wording in these rulings specifically includes the words “airport” and “fly.”

In this day and age travelers who enter an airport have reasonable knowledge that they will encounter a search of their person and property either by physical pat down or by a technological device or both. Travelers entering a train station, bus station, ferry terminal, subway station, do not have any reasonable expectation that they will be stopped and searched without probable cause and travelers need not submit to TSA VIPR Teams. The TSA cannot demonstrate that a person simply entering a mass transit center has given up their reasonable expectation or privacy, as determining what is inside a person’s pockets or bags requires a physical intrusion into the person’s personal property.

Should a traveler encounter a TSA VIPR team deployed in a non-airport environment I would advise them to refuse to submit to the search. Once they have refused the search they should ask for the team leader and request that person’s name, title and where they are based. If the traveler has a video camera, as most phones now do, I would advise them to record their entire interaction. As you have written about the TSA publicly states that photography and video of TSA operations are legal. Furthermore video in a public space cannot be legally impeded except in certain very limited instances in the United States.

The TSA may threaten the traveler with arrest for refusal to comply and it is possible the local law enforcement on site will comply with the TSA’s arrest request, however this arrest should not hold up in court if the traveler is polite, non-combative and complies with the arresting officer’s request.

Some train stations and bus stations have signs stating that any packages brought into the premises may be subject to search, however unless specifically stated, these searches would be limited to a train station not the platform outside, or bus station boarding area outside the building. Furthermore these search advisory signs generally apply to a search being conducted by law enforcement and require law enforcement to have probable cause to warrant the search of a bag. A sign hung in the corner of a train station stating bags may be subject to search does not negate the need to demonstrate probably cause for the search by law enforcement.

TSA VIPR teams operating in highway rest stops should be for informational purposes only. Should TSA VIPR teams attempt to search truckers or bus drivers, their vehicles or property, those drivers should refuse the search and gather all the relevant information from the TSA Officers, then contact the agency regarding the unwarranted search in a public area.

Should anyone be forced to submit to a TSA VIPR search through threat, intimidation or be arrested or denied boarding as the result of refusing to submit to a TSA VIPR team in a non-airport environment I would strongly advise them to contact the ACLU and an attorney to take legal action against the TSA.

Until the TSA’s operational presence in undefined areas is defined in such a way that transportation security and the law are balanced the agency needs to reign in its violation of the Fourth Amendment.

Our job in the Department of Homeland Security is to protect the United States and we do this by upholding the Constitution and The Law Of The Land.

[Name Withheld At Request Of Author]

Office of the General Counsel

Department of Homeland Security

Well folks … there you have it, the opinion of a Department of Homeland Security attorney on the Transportation Security Administration’s Visible Intermodal Prevention and Response (VIPR) teams.

Happy Flying!

@flyingwithfsh