TSA Out of MBTA Protest Hits Boston Common

BOSTON/Boston Common - Former Supreme Court Justice Louis D. Brandeis called the right to be left alone “the most comprehensive of rights and the right most valued by civilized men.” It is also the right which is perhaps most often threatened; whether directly, or in the name of safety and security.

A coalition of groups and activists associated with the Occupy Movement gathered on Boston Common on Feb. 2 to protest what they call an encroachment upon MBTA riders’ Fourth Amendment rights: The Transportation Security Administration-assisted baggage inspections of passengers boarding trains at T stations.

Five separate groups assembled at T stations throughout the city and marched to Boston Common for the 2pm rally, which featured elements of Occupy the MBTA, The Pirate Party, #Anonymous and various other activist organizations.

Roughly 50 hardy souls braved freezing temperatures to show their support and heard from a handful of speakers representing a variety of groups, including the Boston Occupier newspaper and local internet station UNregular Radio.

“A lot of people say: ‘oh, it’s okay, I’m being protected from terrorism, I’ve got nothing to hide,’” organizer Garret Kirkland told the assembled crowd. “You’ve got everything to hide. That’s your privacy. Are we going to wait, as a city, until we get to stop and frisk? Is it going to take people in the street to pat you down and say: ‘are you carrying a weapon? Let me just feel up your leg to make sure.’”

While not a new development—the inspections have been common practice since 2006, according to T officials—protesters said the random, warrantless searches infringe upon their constitutional right to not be subjected to unreasonable search and seizure and also violate Article 14 of the Massachusetts State Constitution.

Protesters also took issue with the MBTA’s classification of these actions as “inspections” rather than “searches.”

“They want to say, ‘oh, well this isn’t a search,’” said Occupy Boston veteran Frank Capone. “Well, it is a search ... If you are doing something with the intent of finding something, that is a search.”

In 2006 a New York appeals court ruled that random police bag searches do not violate Fourth Amendment rights. Courts have upheld the practice of inspections in New York City and Boston, according to MBTA spokesman Joe Pesaturo, who also noted there have been very few complaints about the inspections.

“Although there has not been an actual attack in this country, mass transit still remains a possible target for terrorists,” Pesaturo told Open Media Boston. “The FBI has made arrests in several plots that involved possible attacks in this country; one of those involved the Washington DC metro system.”

TSA officials struck a similar chord.

"While there is no specific threat to mass transit in the United States, TSA and the MBTA Police continuously work together to strengthen overall security efforts on the T and keep T riders safe," TSA spokeswoman Ann Davis told Open Media Boston. "Visible Intermodal Prevention Response teams (VIPRs) help augment the existing security protocols the MBTA Police have in place to protect their customers and employees.

"TSA has general authority to support security in all modes of transportation under the Aviation and Transportation Security Act of 2001 (Public Law 107-71, November 2001), Section 114(f). Specific operational authority derives from Section 1303 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110-53, August 2007). This provision specifically authorizes TSA to deploy personnel and resources, including Transportation Security Officers and supporting equipment, to augment security in any mode of transportation under the Visible Intermodal Prevention and Response (VIPR) program."

Protesters scoffed at the notion that court approval somehow makes the practice alright, pointing to other misguided court rulings, such as separate but equal.

“It doesn’t matter what a court says,” said Capone. “Because a court upheld separate but equal. Was that right? Was that okay?

“No, it wasn’t. It was bullshit. This is bullshit, and we’re going to stop it.”

The inspections take about 20-30 seconds, according to the MBTA, and involves running a swab over carry-on baggage. Passengers can refuse to comply with the inspections, but will the be denied entry at that station.

Davis said TSA has conducted over 26,000 VIPR operations since 2005, and, while it is difficult to measure the effectiveness of deterrence, the actions serve to make it that much harder for those who would attack public transit to do so.

"Although the value of deterrence is difficult to measure directly, the presence of law enforcement transportation security personnel VIPR assets increases the difficulty with which potential terrorists plan and conduct terrorist activity," said Davis. "Mass transit is an open system that requires a risk-based, multi-layered approach to security. In the current mass transit environment, airport style screening would not be sustainable and would delay or cease transit operations."

Pesaturo said that while MBTA Police conduct the inspections, they are assisted by TSA personnel, via a cooperative agreement.

“Inspections are a recommended practice of the Department of Homeland Security (DHS) and TSA to prevent, deter or disrupt a possible terrorist attack,” said Pesaturo. “Through a cooperative agreement we utilize TSA personnel to assist us with the inspections.”

Despite the assurances of MBTA and TSA officials that the inspections are not intrusive and aimed at deterring possible terrorist activity, the protesters—rallying under the #Defendthe4th banner on Twitter—remained unconvinced.

"What is this world coming to? Is this city turning into a police state?" Wondered organizer Tamarleigh Grenfell. "We have to stand up for the Bill of Rights and make it clear to policy makers on the local, state and national level that we will not stand for violations of our rights."

Members of the coalition vowed further action on this issue in the future.