Is the TSA allowing convicted rapists to perform pat-down searches?

Last Thursday, without much fanfare, TSA announced that it would start a new screening procedure that would include more pat-down searches nationwide. USA Today reports that in the new procedures, screeners' hands would slide over a passenger's body, requiring screeners to touch passengers' breasts and genitals. In addition to questions over whether this change is necessary or effective, another question that many passengers may have in the backs of their minds is whether the TSA screeners have a criminal background that should preclude them from such sensitive duties.

Possible reasons for the new procedures
There is some debate over whether these procedures are either useful or necessary. There are certainly threats to airliners from bombs that could be carried on a person's body, such as the bomb used in the unsuccessful bombing attempt on a Delta airliner last December. However, it is not at all clear that this new pat-down procedure would have found that explosive device.

The more recent incident involving two bombs sent as cargo from Yemen to the US could indicate renewed efforts to target US airliners. However, there has been no public acknowledgement by the TSA, the US government, or any other government that there is any increased threat to air travel from bombs hidden beneath clothing. Certainly the new pat-down procedure is a very public and very noticeable increase in security, but not one that is directly linked to any immediate threat.

TSA employees with faulty criminal background checks
The TSA serves a very important and vital role in airline security, and all of their employees are required to pass security and background checks. However, those checks in the past have been less than thorough. For example, in 2004, the Department of Homeland Security (which includes TSA) released a report that stated that TSA had allowed some screeners to perform their duties before their criminal background checks were complete, and allowed others to continue working while problems with their background checks were resolved. Even if this problem no longer exists for current applicants and employees, a more serious problem may be that the current system of background checks may have allowed those convicted of rape and other sexually based offenses to join TSA.

Are current TSA background checks too limited?
The 2004 DHS report stated that federal regulations (49 CFR. § 1542.209) specified were 28 kinds of felony convictions that would have disqualified an applicant for a TSA screener position, including rapes or crimes involving aggravated sexual abuse, but only if those convictions had occurred in the previous 10 years. It implies that a person convicted of rape, attempted rape, child molestation, or similar crimes may not be required to report such convictions during their background check and may be allowed to perform pat-down searches on passengers.

It is unclear if TSA has changed its background check requirements since 2004 to exclude any convicted sex offenders from working directly with passengers. However, the fact that in the past it may have been possible that someone with that kind of criminal past may be a TSA screener may concern most passengers.

Are convicted rapists performing pat-down searches?
The full details of the the TSA's process for reviewing current and potential employees is not available to the public. Whatever those procedures are, a reasonable passenger would agree that anyone who has been found guilty of any crime that involves rape or some similar criminal act should not be allowed to search passengers. If the TSA could publicly address the following questions, it may go a long way toward reducing the public's concern over the new pat-down procedures:

• Are there any current TSA employees who are convicted sex offenders (either for a felony or lesser crime, either as an adult or juvenile), even if the conviction occurred more than 10 years before joining TSA?
  
  
• If the answer to the first question is yes, are any of these employees acting as security screeners who must have direct physical contact with the flying public?
  
  
• If the answer to the first question is no, have all TSA employees, as part of their background check, been asked if they have been convicted of rape or some other sexually based crime, whether it were a felony or lesser crime, either as an adult or as a juvenile, even if the conviction occurred more than 10 years before joining TSA?
  
  
• If the first question can't be answered for a TSA employee because of inadequate information, would this employee be restricted from working in a position that involves direct physical contact with the flying public?
  
  
• Are TSA security screeners who are convicted of rape or another sexually based crime, no matter how minor, immediately removed from any position where they may have physical contact with the traveling public?

Unless the TSA is both willing and able to answer these and similar questions, the average traveler may be very reluctant to submit to invasive searches where TSA security officers have to physically touch them in sensitive areas, making it more difficult for the TSA to accomplish its security mission.

What to do if searched
While searching passengers, including pat down searches of breasts and genital areas, may be necessary for security purposes, it would be considered very intrusive by most passengers. If you are selected for this kind of search, you should insist that it be done in a dignified manner. It should be done in a screened off area so that you can't be viewed by others in the vicinity, and the TSA representative should act in a professional manner.

Dealing with abuses
If you feel that you were not treated with dignity or respect during a pat down search, you should take appropriate actions such as calling attention to anything that you think is unnecessary or having a TSA supervisor or law enforcement official present. You can also file a complaint with the TSA, with the AirSafe.com complaint process, or with an organization like the American Civil Liberties Union (ACLU). The ACLU has noted several types of common abuses:

• Unnecessary groping of passengers’ breast or genital areas
  
  
• Humiliating experiences including for disabled or transgendered passengers
  
  
• Lack of privacy during pat-downs
  
  
• Lack of respect for religious requirements.

If you feel that you have not been treated in a fair and professional matter, you can contact the ACLU and provide them with details about your experience.

Resources
Interviews on Rudy Maxa's World featuring Dr. Todd Curtis (10:40)
DHS report on TSA screener background checks
WTOP interview on November 16, 2010 with Dr. Todd Curtis about new pat-down TSA procedures (5:12)

Photo: Joe Philipson