National Opt-Out Day

Changing Airline Security Procedures One Opt-Out

at a Time

David Chen
December 8, 2010
DPI-680: New Media and Public Action
Final Paper: Final Draft
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Prologue

On November 13, 2010 at 5:30 a.m., a 31-year old computer programmer

named John Tyner walked into San Diego International Airport with his father-in-

law, intending to fly out of town to visit family members. Tyner was a conscientious

citizen and had previously conducted research on the Transportation Security

Administration’s (TSA) security procedures at the San Diego airport. He was

particularly concerned with the use of new backscatter x-ray machines, which the

TSA had begun rolling out to many major airports, and the health and privacy risks

associated with them. While people could opt out of going through the backscatter

devices, they would be subject to potentially invasive pat-downs. Having heard of

prior unprofessional conduct by TSA officials, Tyner made sure to bring a video

recording device with him in the event that an incident were to transpire.

Tyner had all of these issues in mind as he approached the TSA metal

detector at the entrance to the airport’s boarding area. While the TSA’s website had

indicated that San Diego airport was not yet employing the new backscatter

machines, Tyner was surprised to find that there was in fact a machine in use. He

was pulled out of line to go through the new machine, then asked if he wanted to opt

out. He chose to opt out, and was brought to another area to receive a pat down by a

TSA official. Describing the events of that morning, Tyner wrote, “After he finished

his description but before he started the pat down, I looked him straight in the eye

and said, ‘if you touch my junk, I'll have you arrested.’ He, a bit taken aback,

informed me that he would have to involve his supervisor because of my comment.”

After his refusal to participate in the pat down, Tyner left the area and received a
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refund for his ticket. Before he was able to leave the airport, a TSA official

approached him and explained that by law, Tyner was required to complete the

security screening after he had entered the screening area. Refusal would

potentially result in a civil suit and a $10,000 fine. “You bring that suit,” Tyner said,

and left the airport.

That morning, John Tyner effectively joined a wave of growing discontent

about airport security procedures that was sweeping the nation. Tyner’s blog post

describing his encounter was forwarded, blogged, tweeted, and facebooked

incessantly. His incident received coverage on national news outlets such as ABC

News, CBS News, and NPR, and Tyner was interviewed countless times. Video of

Tyner’s encounters with various TSA officials, recorded by Tyner himself, was

posted onto Youtube and received hundreds of thousands of views. In one of the

videos, a TSA official can be heard issuing a chilling rejoinder to Tyner: “By buying a

ticket, you gave up a lot of your rights.”

Setting the Stage

While airport security procedures had already grown increasingly restrictive

in the aftermath of the September 11th terrorist attacks, several subsequent events

coalesced to bring this issue to a head in fall 2010.

On December 25, 2009, Umar Farouk Abdulmutallab, a Muslim Nigerian

citizen, boarded a plane from Amsterdam to Detroit, Michigan and attempted to

destroy the aircraft by detonating explosives he had hidden in his underwear. His

attack failed because the explosives, a mixture of powder and liquid, did not

detonate as planned. In the wake of this attempt, the TSA made adjustments to
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procedures in an attempt to account for future “underwear bombers.” Throughout

2010, a series of lobbying efforts resulted in a $173 million contract being awarded

to a company called Rapiscan for the production of backscatter x-ray devices that

utilized advanced imaging technology (AIT). AIT machines functioned by shooting

ionizing radiation at subjects and then creating an image from the radiation

reflecting back to the device. By allowing TSA officials to “see through” an

individual’s clothes, AIT machines were believed to be able to thwart would-be

attackers who might be hiding explosives in their undergarments. By fall 2010,

there were 385 AIT machines deployed at 68 airports nationwide.

The TSA further expanded its reach (literally) by implementing new pat

down procedures in late October 2010. TSA officials were authorized to use the

front of their hands rather than the back, and were instructed to run their hands up

the inside of a subject’s legs and under her breasts to check for hidden contraband.

Using this procedure, a TSA official’s hands would frequently come in contact with a

subject’s genitals. Travelers who opted out of going through the AIT scan were

automatically subjected to the new enhanced pat down.

Numerous objections arose to both of these changes in protocol. The

American Civil Liberties Union described the new machines as a “virtual strip

search,” akin to a violation of the Fourth Amendment (which guarantees citizens

protection from “unreasonable searches”). While the images generated were

theoretically “PG-13,” AIT machines were in fact able to produce extremely detailed,

anatomically correct pictures of their subjects. Their capabilities were brought to

light when, in May 2010, one TSA official assaulted a colleague who made a joke
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about the size of his genitalia as he passed through the machine during a training

session.

The safety of the scanners was also in question. According to a New York

Times report:

The scanning machines deliver a dose of ionizing radiation

equivalent to 1 percent or less of the radiation in a dental X-ray. The
amount is so small that the risk to an individual is negligible…But
collectively, the radiation doses from the scanners incrementally
increase the risk of fatal cancers among the thousands or millions of
travelers who will be exposed, some radiation experts believe.

Furthermore, an NPR investigation revealed that the government was

potentially miscalculating the effect of the radiation. For its part, the government

defended the machines as safe, and the radiation risk as minimal. In an op-ed in USA

Today, Janet Napolitano, secretary of the Department of Homeland Security, insisted,

“AIT machines are safe, efficient, and protect passenger privacy. They have been

independently evaluated by the Food and Drug Administration, the National

Institute of Standards and Technology, and the Johns Hopkins University Applied

Physics Laboratory, who have all affirmed their safety.”

The enhanced pat downs were also described by various people as “groping,”

“fondling,” and tantamount to a sexual assault. Still, the government believed them

to be a necessary component of its new restrictions. On November 16, 2010, head of

TSA John Pistole insisted in testimony before the U.S. Senate that the combination of

AIT devices and enhanced pat down procedures would have stopped would-be

terrorist Abdulmutallab before he had even boarded the plane.

The Resistance
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November 2010 saw a flurry of online activity directed against the new

security procedures. Much of the activity focused on personal testimonials of people

who were forced to endure the new screenings. In addition to Tyner’s infamous blog

post, video surfaced online of a crying 3-year old girl who was the subject of an

invasive-looking TSA pat down. The video went viral and sparked universal outrage.

Even people in the airline industry began pushing back against the changes; a flight

attendants union expressed fear that its members would be abused under the new

procedures, while a pilots union told its members to opt-out of getting scanned.

On November 16, 2010, the gadget blog Gizmodo uncovered evidence that a

courthouse in Orlando, Florida had saved over 35,000 images from its image-

scanning device. Previously, the TSA had assured citizens that such images were

never saved, but the net effect of Gizmodo’s blog post was to prove that they weren’t

saved as a matter of policy, rather than as a matter of technology. “[T]he leaking of

these photographs demonstrates the security limitations of not just this particular

machine, but millimeter wave and x-ray backscatter body scanners…across the

country. That we can see these images today almost guarantees that others will be

seeing similar images in the future,” the site predicted. Gizmodo’s post received over

1.1 million page views in less than 24 hours, a staggering number for any website.

In addition to a large number of Facebook groups, several sites

spontaneously formed around the topic to aggregate information. We Won’t Fly

captured the tone of several of them and boasted a relatively straightforward series

of instructions: 1) “If you absolutely, positively must fly, opt out the scanners. Do it

to protect your health and privacy,” 2) “If you can avoid flying, don’t fly. Hit the
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airlines in the pocketbook until the scanners and gropers are gone. Make the airlines

work for us,” and 3) “Raise holy hell. Register your disapproval of the scanners and

gropers to your airline, your hotel, and all government officials who claim to work

for you. Educate your community.” In addition, the users of social bookmarking site

Reddit created Fly with Dignity, “a site-based initiative to inform the public of the

injustices and discrimination…in order to get the public involved and to promote a

way to end the usage of the Full Body Scanners and pat downs.”

Both We Won’t Fly and Fly with Dignity supported National Opt-Out Day, an

initiative that gained steam in the early weeks of November 2010. “Wednesday,

November 24, 2010 is NATIONAL OPT-OUT DAY!” the site declared. “The goal of

National Opt Out Day is to send a message to our lawmakers that we demand

change. We have a right to privacy and buying a plane ticket should not mean that

we're guilty until proven innocent. “ The site encouraged people to opt-out of AIT

scans on November 24, the day before Thanksgiving and the busiest travel day of

the entire year. The hope was to stymie nationwide travel to such an extent that

lawmakers would be forced to take notice and respond to the public outcry.

Designing an Effective Response

In evaluating the effectiveness of the anti-TSA movement, it is useful to draw

upon theories and concepts surrounding new media’s ability to mobilize public

action. The various forces arrayed against the TSA’s procedures were diverse and

fragmented, but they built upon shared, universal, and visceral reaction to the

perceived violation of personal privacy. More importantly, they had a singular,

achievable goal: to change the TSA’s invasive screening policies. They may have
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differed in their various approaches to this goal – for example, some believed that

participating in National Opt-Out day was a necessity, while others wanted to go

through conventional channels of legislative change – but they were unified in a

singular cause that was relatively specific. Furthermore, it was a goal that could

theoretically be accomplished through existing institutional means. In the short

history of new media tools, we have seen various instances where concerned

citizens have mobilized to create change, but they have only unequivocally

succeeded in situations where the state has provided an avenue for such change to

occur.

For instance, the Green Wave in Iran in summer 2009 formed in response to

the allegedly fraudulent election of Mahmoud Ahmadinjad. But while its use of

mobilization tools such as Twitter and SMS was thrilling to behold, and while the

will of its participants to lay down their lives for the cause of legitimate democracy

was inspiring, the movement was ultimately unable to achieve a re-election to

install opposition leader Mir Hossein Mousavi, largely because no mechanism

existed in Iran’s theocracy-democracy hybrid government to allow this to happen.

Contrast this with the protest against Joseph Estrada in the Phillipines in 2001,

where protesters mobilized using SMS and took actions that resulted in Estrada

being removed from office. Rather than attempt to change the government using

external forces, protestors invoked the government’s existing means of keeping its

leaders accountable (in this case, impeachment proceedings).

In the present situation, the goal is similarly achievable. By targeting two

very specific procedures – the AIT machines and the pat down procedures – the
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anti-TSA protestors made it very easy both for people to mobilize and for the

government to respond. Because the abuses of the TSA procedures are already so

inclined to virality, with their outrageous depictions of everyday citizens suffering

harassment of all sorts, all protestors needed to do was make video and audio of

such uses available to view and easy to pass on. Tools such as blogs, Twitter,

Facebook, and Youtube were deployed as weapons of protest.

Referring to the Catholic Church prior to the Reformation, Asa Briggs once

wrote of the “conservative dilemma,” that is, the problem faced by authorities in

times of dissension. In this scenario, authorities have the ability to either repress the

uprising (censorship) or disseminate their own messages (propaganda). In the

situation at hand, anti-TSA protestors co-opted the national conversation around

safety procedure. Due to the ubiquity of new media in the U.S. in 2010 (not to

mention the First Amendment), government officials did not attempt to prevent

discussion or criticism of the new procedures. They were, however, forced to

explicitly defend their actions. In the second and third weeks of November 2010,

TSA Head John Pistole and Janet Napolitano gave statements and interviews with

numerous news outlets and other public forums, in an attempt to quell the uprising

in the making.

Perhaps one of the biggest strengths of the anti-TSA movement has also led

to one of its greatest challenges. Legal scholar Yochai Benkler identified modularity

and granularity as design principles useful for organizing large groups of people.

Applied to this situation, one can encourage participation by breaking large tasks

down into discrete, low-impact components. This philosophy fit in nicely with the
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goals of the anti-TSA movement, which was primarily focused on getting people to

somehow express their dissatisfaction. For example, the site We Won’t Fly listed

numerous, small tasks that people could to perform to register their discontent,

such as “OPT OUT of scanners. EVERY TIME!” and “Tweet your feelings with hashtag

#wewontfly.” Some tasks were more granular than others (“Stop flying,” for

example, might not be possible for many people) but by presenting a “menu” of

options, the site increased the likelihood that observers could do something to

participate.

The anti-TSA movement’s coalescence around National Opt-Out Day,

however, proved to be its most problematic decision. On its face, the logic was

simple: encourage people to use a completely legal method of disrupting U.S. travel

on a massive scale. By making the day publicly known, the TSA would have no

choice but to take any major disruption as a sign that everyday citizens were

opposed to the new regulations. The concept of National Opt-Out day was viral and

had undeniable populist appeal.

But making National Opt-Out Day the focal point of the anti-TSA campaign

had several important downsides. In “The Dynamics of Informational Cascades,”

Susanne Lohmann describes how, in the context of the Leipzig demonstrations in

the late 1980s, it was essential for political moderates to buy in to the protestors’

cause in order to assure success. This was the only way to ensure that a critical mass

could be synchronized and mobilized. In the context of the anti-TSA movement, it

was important to engage as much of the American public as possible. But by its very

nature, National Opt-Out Day, if successful, would have inconvenienced millions of

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people, many of whom may not have even known about the new TSA procedures,

nor flown for quite some time. Souring the public on one’s mission during its

incipient stages is an inadvisable tactic, given what we know about previously

successful campaigns for social change.

Furthermore, a one-off event exposed the movement to the risk of being seen

as completely ineffectual. While the online outrage was palpable, more time was

needed for the anti-TSA message to spread to the public, writ large. If no one

participated in National Opt-Out Day, it would have made it easier for the

government to downplay the movement’s influence. In addition, success would have

been very difficult to measure, and thus, difficult to advertise. As already mentioned,

November 24th is one of the busiest days of the year. Internet–inspired chaos is often

different to distinguish from pre-existing chaos.

Epilogue

The anti-TSA movement did a great deal to increase awareness of invasive

TSA procedures, responding rapidly and spreading news and testimonials in a short

period of time. Their use of new media showed a canny ability to organize

passionate people around a cause. By making barriers-to-entry low for prospective

participants, the anti-TSA movement was already likely to achieve some degree of

success in their goals. Lawmakers could not ignore the public outcry forever; some

had already started to pay attention.

The online declaration of a National Opt-Out Day was sufficient to provoke a

response from the upper echelons of the U.S. government. In the days leading up to

November 24th, John Pistole urged travelers not to participate in Opt-Out Day,
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saying it would only “tie up people who want to go home and see their loved ones.”

Even President Barack Obama came out in defense of the new TSA procedures,

saying that they were necessary to prevent future terrorist attacks, but offering that

“[t]his is going to be something that evolves.”

But in the end, National Opt-Out Day came and went without much fanfare.

The TSA claimed that operations were smooth and that few travelers opted out; in a

well-timed, meticulously constructed blog post, the government organization linked

to dozens of major newspapers all across the country proclaiming the lack of

participation in Opt-Out Day. The TV news media, already primed to jump on any

provocative footage that might emerge from such a protest, went home empty-

handed. In the days following the event, Whoopi Goldberg claimed on national

television that National Opt-Out Day was an act of terrorism.

A number of factors can account for the failure of National Opt-Out Day.

Media commentator David Carr wrote a detailed post for The New York Times

providing many reasons why the protest was simultaneously enthralling, yet also

failed to catch on with the general public. Most significantly, 80% of traveling of

Americans experienced no change in TSA procedures (the rollout of the backscatter

machines was still quite limited). As such, it is fair to say that the opportunity for

obtaining critical mass did not exist. Even so, the libertarian organization Liberty

Guard accused the TSA of manipulating Opt-Out Day statistics by deactivating many

of their scanners, thus obviating the need for any opt-outs. As of this writing,

litigation and FOIA requests were still pending.

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Ultimately, the anti-TSA movement’s decision to mobilize around National

Opt-Out day had shortcomings that could have been addressed by focusing on the

other areas of their platform. By building anticipation of the day to a fever pitch, the

movement created expectations of a massive, coordinated protest that the American

people were not ready to meet. But the concept of National Opt-Out Day can’t be

said to be a complete loss; the idea captured the imaginations of many writers and

reporters, and helped propagate stories of screening indignities into the popular

consciousness. If the movement can maintain its momentum in spite of the post-

Opt-Out-Day comedown – a formidable task for any movement – it may well achieve

the change it is seeking.