John Perry Barlow, a 56-year-old former songwriter for the Grateful Dead, was settled into his airline seat for departure when a flight attendant asked him to get his belongings and leave the plane immediately.
Airport security workers at San Francisco International Airport had come upon some suspicious-looking wires inside his checked luggage while conducting a routine inspection. No explosives turned up, but screeners allegedly did find a hypodermic needle in a suitcase along with a small amount of marijuana and illegal hallucinogenic drugs in a bottle of ibuprofen. Barlow's travel plans suddenly changed that day in September 2003: he was charged with five counts of misdemeanor possession of illegal drugs and carted off to the Redwood City jail.
Barlow is battling the government in the latest legal case to question the breadth of the Transportation Security Administration's searches and the secrecy of the agency's screening policies. Barlow, co-founder of the cyber-rights organization Electronic Frontier Foundation, contends that the alleged drugs cannot be admitted as evidence because they were seized illegally. He has sought information on TSA's policies as part of his defense.
In his case and in several other ones, TSA has claimed it cannot reveal anything about its practices for fear of compromising "security sensitive information." The agency made such a claim in a California case involving two peace activists who want to know why they and hundreds of others are on the agency's secret "No Fly" list. TSA invoked a similar concern when a wealthy technology entrepreneur, John Gilmore, challenged the agency's requirement that passengers show government identification in order to board an aircraft.
Judge Harry Papadakis ruled against Barlow's motion on illegal seizure earlier this week in California Superior Court in San Mateo County. Barlow said he plans to appeal and continue his push for information about TSA's policies.
"The defendant is trying to make this case something it is not," said Sheryl Wolcott, deputy district attorney for San Mateo County. "It was a standard type of search. We have to balance the privacy interest of a person's luggage versus the security interest of the public who is boarding the plane. It's a pretty simple case."
Security screeners open and search millions of checked bags every day. The searches are so common that TSA now recommends that passengers leave their luggage unlocked because of the high likelihood a screener's hand will find its way inside. Legal experts said the court has not clearly ruled as to whether security screeners -- in this case a security worker employed by a private company contracting with TSA -- can go beyond their duties of looking for explosives in checked bags.
"What we hope to achieve is to shed some light on how these airport searches are conducted. . . . whether screeners can do whatever they want, wherever they want. It's all been kept under a shroud of secrecy," Barlow said.
TSA spokeswoman Yolanda Clark said the agency has "an obligation as federal employees to bring any discovered contraband to the attention of proper law enforcement authorities." She did not provide a tally of the amount of drugs or other items screeners had turned over to authorities. "We don't open bags to discover contraband, but if we do uncover it, we can't ignore it."
Courts have been clear about the authority of officials to seize illegal items in plain sight. But Barlow claims that TSA went beyond its authority because, according to police documents, the bottle containing the drugs was located inside a pocket of Barlow's bag that was not near the wires that first caused suspicion. According to police documents, the screener looked at the wires first, and then continued to probe the suitcase and found the alleged drugs.
Paul Rothstein, a criminal law professor at Georgetown University, said the extent to which airport screeners can probe for illegal materials is still a legally unexplored area. But, he said, he doesn't think Barlow will win.
"It's fairly clear that if you're searching for one thing and you find another, that the other may be used" in a prosecution so long as the official did not go beyond the area where they are allowed to search, Rothstein said.
The TSA will have to explain why it continued to search Barlow's luggage if the agency and the state want to proceed with the case, said Barry Steinhardt of the American Civil Liberties Union. "If they start charging people with crimes, particularly crimes not relevant to their mission, they're going to have to turn over their security directives" that explain what they are doing and how, he said.
If found guilty, Barlow faces court-ordered drug treatment.
"Anytime you can get the government to stop and think about whether or not they're still on target with their mission, that's a valuable piece of a citizen's work," Barlow said. "You find yourself in situations where you know something has to be done. If you're not going to do it, who is?"