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How My Lawsuit Against the TSA Made Airports Safe For the Constitution Again

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November 10, 2009

(Originally posted at Huffington Post.)

On March 29, 2009, I was traveling through Lambert-St. Louis International Airport carrying approximately $4,700 in cash. I’m the Director of Development for Campaign for Liberty, a political organization that grew out of Congressman Ron Paul’s presidential campaign and promotes constitutional principles of freedom. The cash was money the Campaign for Liberty had received at our Regional Conference in St. Louis — the proceeds of ticket sales, T-shirts, stickers, books, etc. — that I was transporting back to our office in Virginia. The price for bringing my organization’s cash box through TSA screening? TSA agents detained me for half an hour of harassing questioning.

Of course, carrying cash on flights within the United States is not illegal. My case was one of many troubling incidents in which the TSA attempted to transform its limited search authority into a license to invade people’s privacy by performing sweeping, unfounded searches that have nothing to do with keeping flights safe. The only difference between others who have been subjected to these types of illegal searches and myself is that I was equipped with a pocket edition of the U.S. Constitution and my iPhone. And I wasn’t afraid to use either.

Although my knowledge of the law was limited, I did not believe that I should have to surrender my constitutional rights because I chose to travel by plane. I knew I was not doing anything illegal or suspicious. I also knew the government’s interest in investigating me had nothing to do with flight safety. There was no suggestion I was carrying anything dangerous to anyone on board or the plane itself. The TSA agents focused their entire interrogation on the fact that I was carrying $4,700 cash. Based on that, they held me in an interrogation room to investigate me; I remained polite but insisted on at least being informed of my rights under the Constitution.

You don’t have to believe my characterization of the interrogation. I recorded audio of the incident with my iPhone. Two things emerge clearly from the recording: first, the agents were not plausibly investigating evidence of a risk to flight safety; and second, they were not interested in informing me of my legal rights. When a combination of TSA agents and police officers crowded the room, the interactions became like something you’d see on a television police drama.

I was repeatedly asked where I worked, what I was doing with the money, where I got the money, and a host of other unnecessary questions. My response? “Am I legally required to answer?” I was told I would be taken to see the FBI and the Drug Enforcement Agency (DEA), asked if I needed to be handcuffed, and informed, “If you have nothing to hide, just answer the questions.” Upon my final statement that I was looking for direction as I did not understand the law, I was informed, “We’re gonna help you understand the law,” and I was lead down the hall to be further investigated, I was told, by the FBI and/or DEA. Although I never did end up speaking with the FBI or DEA, it’s worth listening to the audio of my interrogation to get a clear sense of the situation.

The law states that TSA agents should be able to search for weapons and explosives, things that could pose a threat to flight safety. But extending their searches to fishing expeditions for general law enforcement purposes — searches TSA agents are not trained to perform — only serves to distract from that task.

On June 18, 2009, the American Civil Liberties Union (ACLU) filed a lawsuit on my behalf in federal court, charging TSA with violating my constitutional right to be free from unreasonable searches and seizures. My focus was on principle rather than financial gain, and I did not seek money in the lawsuit. Rather, my case asked the court to order TSA screeners to conform their searches to the Constitution’s requirements. Under the Constitution, TSA screeners do not have the unlimited ability to search and detain passengers. Search procedures designed for purposes other than screening for weapons and explosives exceed TSA’s authority and violate passenger rights, and we hoped a court order could generate a policy from TSA that respected all travelers’ liberties.

What a difference a lawsuit makes. Eight days before the government’s response was due in our case, TSA issued a new policy directive making clear that its safety screening procedures would be strictly limited to passenger searches for the purpose of safeguarding flight safety. In combination with other directives issued in the wake of our lawsuit, TSA’s policy now makes clear that passengers should not experience the kind of suspicionless detention and questioning I had been subjected to.

In light of this victory, yesterday the ACLU informed the court of our intention to voluntarily dismiss the suit. The Constitution draws a critical distinction, which these new directives reflect: when subjecting individuals to blanket, suspicionless searches, TSA agents must adhere to their limited mandate of protecting flights against weapons or explosives. The new policy is clear: passengers are no longer forced to check their constitutional rights at the airport counter, and that is a victory for all.

Steve Bierfeldt is the Director of Development for Campaign for Liberty, an organization that seeks to promote and defend the principles of individual liberty, constitutional government, sound money, free markets, and a non-interventionist foreign policy through educational and political activity.

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