TSA Fixes Search Policy After ACLU Sues

New Directives Address Inappropriate Searches Like The One Ron Paul Campaign Treasurer Endured

Following a lawsuit filed by American Civil Liberties Union, the Transportation Security Administration (TSA) has revised its policies governing airline passenger screening to make clear that TSA agents are authorized to conduct searches related to safeguarding flight safety, not to engage in general law enforcement. Calling the policy changes a victory for civil liberties, the ACLU has moved to drop its lawsuit, originally filed in June on behalf of a traveler who was illegally detained and harassed by TSA agents at the airport after they discovered he was carrying approximately $4,700 in cash.

"This new policy provides much needed clarity to TSA screeners and reflects the critical requirement that TSA agents must adhere to their important but limited mandate of protecting flight safety," said Ben Wizner, a staff attorney with the ACLU National Security Project. "The airport is not a Constitution-free zone, and the price of traveling is not exposure to limitless government searches."

The ACLU filed its lawsuit in June on behalf of Steven Bierfeldt, who was detained on March 29, 2009 in a small room at Lambert-St. Louis International Airport and interrogated by TSA officials for nearly half an hour after he passed a metal box containing cash through a security checkpoint X-ray machine. Bierfeldt was carrying the cash in connection with his duties as the Director of Development for the Campaign for Liberty, a political organization that grew out of Congressman Ron Paul's presidential campaign. Bierfeldt repeatedly asked the agents to explain the scope of their authority to detain and interrogate him and received no explanation. Instead, the agents escalated the threatening tone of their questions and ultimately told Bierfeldt that he was being placed under arrest. Bierfeldt recorded audio of the incident with his iPhone.

In the lawsuit, Bierfeldt and the ACLU sought a court order requiring the TSA to bring its search policies into line with constitutional requirements for passenger privacy, arguing that passengers moving through pre-flight screening can only be subject to searches aimed at keeping weapons and explosives off airplanes. Bierfeldt's experience proved that TSA searches had taken on a much broader scope.

In September, eight days before the government's response to the ACLU lawsuit was due, the TSA issued a new directive governing passenger screening searches. The new policy states clearly that "screening may not be conducted to detect evidence of crimes unrelated to transportation security." In October, the TSA issued a second directive addressing the issues raised in the ACLU's lawsuit, stating that "traveling with large amounts of currency is not illegal," and that to the extent bulk quantities of cash warrant searching, it is only to further security objectives.

"It is a huge victory for civil liberties that TSA agents no longer have free reign to conduct sweeping, baseless searches and detain passengers who don't pose a threat to flight safety," said Bierfeldt. "I do not believe I should give up my constitutional rights each time I choose to travel by plane, and I certainly do not want another innocent American to have to endure what I went through."

The ACLU has moved to drop its lawsuit against the TSA because the agency's new directives address the unconstitutional policies which the lawsuit challenged. Having reviewed the new policy directives, the ACLU believes that travelers will no longer be subject to the unconstitutional treatment Bierfeldt endured.

"While we have never challenged the TSA's basic authority to conduct safety-related searches, our concern was that TSA interpreted its limited authority to safeguard air travel as a license to conduct unlimited law enforcement searches for which TSA agents are not trained and which distracted from the agency's critical mission of ensuring flight safety,"said Larry Schwartztol, a staff attorney with the ACLU National Security Project. "By reinforcing the constitutionally mandated limits on the TSA's search authority, the new directives enhance the TSA's safety-related mission."

The ACLU's lawsuit was filed against Janet Napolitano, Secretary of the Department of Homeland Security, which has authority over the TSA. It was filed in federal court in Washington, D.C.

Attorneys on the case are Wizner, Scott Michelman and Allen Hopper of the ACLU, Art Spitzer of the ACLU National Capital Area and cooperating attorney Alan Gura of Gura and Possessky, P.L.L.C.

The TSA's September directive is available online at www.aclu.org/national-security/bierfeldt-v-napolitano-declaration-william-switzer-iii (identified as Attachment 2)

More information about the case, including the ACLU's original complaint and an audio recording of Bierfeldt's detention and interrogation, is available online at www.aclu.org/national-security/bierfeldt-v-napolitano