Each year, millions of Americans travel by airplane. But you shouldn't have to check your rights when you check your luggage. Whether for work or for pleasure, you should be able to reach your destination with your privacy and other civil liberties intact. Unfortunately, that is getting harder and harder.
This resource is intended to serve as a guide to procedures and technologies you may encounter in your travels. Much of the information here is based on the Department of Homeland Security (DHS) internal policy – not law – so it is subject to change and inconsistent application. If you encounter different policies at the airport or feel your rights are being violated, you can share your story with the ACLU.
This guide is not intended to provide specific legal advice. Please consult with an attorney if you seek legal advice.
THE SPOT INTERVIEW
Many airports around the country have introduced the “Screening of Passengers by Observation Techniques” (SPOT) program that subjects some passengers to questioning by “behavioral detection” officers. In a few airports all passengers entering some terminals are questioned. Officers might ask about the destination of your trip or the purpose of your visit. The ACLU believes that passengers not suspected of wrongdoing should not have to answer questions from government agents about their personal business.
OPTION: Decline to answer
You can decline to answer questions or reply to each question politely with the simple words, “personal business.” However, if the TSA officer does not feel that you are answering his or her questions, they may select you for secondary screening.
BODY SCANNERS
Many airports now require passengers to go through a body scanner that uses advanced imaging technology. The scanners use "backscatter x-ray" or "millimeter wave" radiation to see through your clothes and create an electronic image of your naked body.
Although TSA says that the capability to store and transmit images of passengers' bodies will not normally be activated, the agency requires this functionality in all the airport scanners it purchases.
A TSA agent in another room will see an image of your body that could include a revealing look at your entire body, including breasts, genitals, buttocks, and external medical devices. The ACLU and many Americans object to these machines as an excessive invasion of privacy.
New software being installed in some millimeter wave body scanners allows agents to see only a generic outline of your body with potential “anomalies” highlighted. This is a definite improvement in privacy. The machine will, however, still highlight some medical conditions or other bodily “anomalies,” leading to pat-downs.
Health questions have been raised concerning radiation emitted by the backscatter x-ray machines (which look like a wall that you stand against, as opposed to the millimeter wave machines which are a glass booth you step inside).
Option: Ask not to go through this scanner
You can tell the TSA agent that you do not wish to go through the scanner. TSA agents are required under TSA policy to honor your request, but might try to encourage or pressure you to go through anyway. To be as clear as possible, say, "I opt out." However, you should know that if you opt out, you will be subject to a pat down that many people find as or more troubling than the body scanner. You also have the right to opt your children out of the scan.
THE "STANDARD PAT-DOWN"
The TSA's "standard pat-down procedure" is now a more invasive form of the pat-down search that you might have experienced in the past. During the new standard pat-down, a screener of the same sex will examine your head, shirt collar area, and waistband, and may use either the front or back of his or her hands to feel your body, including buttocks, around breasts, and between the legs, feeling up to the top of the thigh. Women in tight skirts that don't allow an agent to feel the thigh area may be asked to remove the skirt in a private screening area and will be given a gown or towel to put on.
Option: Let TSA know about sensitive areas
Tell TSA agents about things such as injuries or conditions that could cause you pain if certain parts of your body are touched or pressed, as well as any medical devices that could be dislodged by a search, or any other reason that TSA agents should be careful when touching your body.
Option: Ask to be patted down in a private location
If you are uncomfortable being patted down in front of other passengers, you can request that TSA agents take you to a private area.
THE "RESOLUTION PAT-DOWN"
If an "anomaly" is detected during the pat-down--or when you go through the AIT scanner-- you will be subjected to a "resolution pat-down." TSA agents will take you to a private area and do a more intense pat-down, which includes using the front of the agent's hands for a more thorough search, including the groin area.
Option: Ask to take a witness with you.
If you are taken to a private area for a "resolution pat-down" search, you can ask to bring a witness with you, or ask TSA to provide a witness for you. This search should also be conducted by a person of the same gender.
SEARCHES OF BAGS, LAPTOPS, AND ELECTRONICS
U.S. Customs and Border Protection (CBP) claims the right to search and confiscate laptops, mobile phones, digital cameras, and other electronic devices upon entry to the United States, without any suspicion of wrongdoing. In some reported cases, CBP has held travelers' electronics for more than a year.
The ACLU and other organizations have filed lawsuits challenging these searches. Learn more about our cases >>
Option: Ask to see a supervisor, and get a receipt
You have the right to have the initial search conducted in front of a supervisor. If they take your electronics, you can ask for a receipt so you can track where they are and seek their return.
TRAVELING WITH CHILDREN
While you may opt your children out of an airport scan, there is no exemption for children from the pat-down searches. TSA says it must “screen everyone, regardless of age (even babies).” However, in September 2011, TSA announced that it will no longer require children to remove their shoes before they go through airport scanners.
TRAVELING WITH BREAST MILK
Breast milk is in the same category as liquid medications. Mothers flying with, and without, their child are permitted to bring breast milk in quantities greater than three ounces as long as it is declared for inspection at the security checkpoint. When carrying formula, breast milk, or juice through the checkpoint, they will be inspected. You or your infant or toddler will not be asked to test or taste breast milk, formula, or juice. TSA officials may test liquid exemptions (items more than 3 ounces) for explosives. TSA may ask you to open the container during the screening process. Liquids and gels, including baby formula, breast milk, or juice, may also be packed in your luggage and checked with your airline.
RELIGIOUS HEAD COVERINGS
Option: Tell TSA about religious head coverings
If your religion does not allow you to remove your head covering, you can tell TSA officials. They may ask you to pat-down your headwear, then rub your hands with a cloth and place it in a machine to test for chemical residue. If the TSA official still wants you to remove your religious head covering, you have the right to ask to do this in a private area.
BORDER INTERROGATIONS
Customs and Border Protection (CBP) officials have the authority to ask your immigration status when you are entering or returning to the United States or leaving the country. They have the power to determine whether or not non-U.S. citizens and lawful permanent residents have the right of entry.
Law enforcement officials reportedly ask some people about their political and religious beliefs, where they worship, and how often they pray. The ACLU believes that such questions are inappropriate.
Option: Decline to answer
If you think you are being asked inappropriate questions, you may say, "I am sorry. I believe you are asking me questions about my protected religious and/or political beliefs and practices. I do not wish to answer these questions." This may cause you delay, but is permissible.
Option: Ask to speak to a supervisor
If you think you are being asked inappropriate questions, you can ask to speak to a supervisor--but be aware that this might cause you further delay. Also ask to speak to a supervisor if you are denied the right to use a restroom or to have family or friends told where you are. You may also file a complaint with the Civil Rights Office of the Department of Homeland Security if you have been held for a long time, asked inappropriate questions, or treated inhumanely. See below.
Option: Ask to have an attorney present
If you are selected for a longer interview by law-enforcement officials and you are a U.S. citizen, you have the right to have an attorney present. If you are not a U.S. citizen, you generally do not have the right to an attorney when you are having an extended interview.
Option: Ask for help
If you are delayed a considerable length of time, you can ask CBP officials to allow you to make a call, or make a call for you.
FINGERPRINTING
All visitors and lawful permanent residents are fingerprinted on entry into the U.S. from abroad.
ASYLUM
If you are told you cannot enter the country and fear you might be persecuted or tortured if sent back to the country you traveled from, you can tell the official about your fear and ask for asylum.
HOW TO COMPLAIN
Tell the ACLU
If you think your rights have been violated while traveling, you can use this form to share your story with the ACLU. (Please note: this is not a legal intake form)
If you require additional information or assistance, you can contact your local ACLU.
File a Complaint with the Department of Homeland Security
You can file a complaint with the Office for Civil Rights and Civil Liberties of the U.S. Department of Homeland Security if you have had any of the following problems:
You may also file a complaint with the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP) if you are:
Complaints should include the following:
Contact:
The Office for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
Building 410, Mail Stop #0190
Washington, DC 20528
Phone: 202-401-1474
Toll Free: 1-866-644-8360
TTY: 202-401-0470
Toll Free TTY: 1-866-644-8361 Fax: 202-401-4708
crcl@dhs.gov
Online:
Travler Redress Inquiry Program (DHS TRIP)
Thanks to the ACLU of Massachusetts for helping to prepare this guide.