The following is the official response we received from Ted Stevens Airport to cease and desist our Transit Monitoring protocol to potentially assist victims of human trafficking. I am posting the letter now as it will be referenced in a future summary of my experiences fighting human trafficking in Alaska.
OF NOTE: I am no longer a team member of Love Justice International as my role became redundant the moment this letter was executed. Further, the opinions in this blog post and any others on this site are 100% my own and do not reflect the beliefs or opinions of anyone else. My opinion is that each and every objection could have easily been overcome at no expense to the state.
Stay tuned - my detailed summary is in the final review and will be posted in this Blog.
Roles and Responsibilities
Letter addressed to Andrew Fennig - former Director of Love Justice International
Signed by - Aaron Danielson, Ted Stevens Chief of Airport Police and Fire
Message delivered by: Kim Kovol - then Special Assistant to Governor Dunleavy, currently acting Commissioner of the Alaska Department of Family and Community Services (DFCS)
MOU review and response conducted by - the legal office of Alaska Attorney General, Treg Taylor
Sabrina Stratford - me, then Love Justice International Project Manager
Text Copy/Paste, below, with document images.
August 9, 2022
Andrew Fennig
Director of Planned Giving & Strategic Partnerships Love Justice International
The Ted Stevens Anchorage International Airport (AIA) declines to entered into, or extend, a MOU with Love Justice International (LJI) to combat human trafficking. Human and sex trafficking are serious issues that the State of Alaska is committed to combatting. We commend Love Justice International for your efforts around the world to assist in this fight. Unfortunately, a MOU with Love Justice International presents issues that just do not make an MOU with us feasible.
A brief description of the MOU is important - not the specific language used, but rather for the concepts it sets forth that are foundational to LJI efforts. The airport would conduct background checks to provide the LJI monitors with badges granting "access to secured areas in the airport." It calls for activities to be "conducted jointly" including “surveying passengers to ascertain the likelihood" of being a victim or at high risk for being a victim and to "gather data on trafficking syndicates and methods" through "in-depth interviews." See page 2. Once a possible victim is identified, these monitors would attempt to conduct an interview in a secure location. Among the listed objectives of the interview is collecting data for "analysis and research into trafficking demographics." See page 3.
LJI Monitors Would Be State Agents
Stops or searches of citizens by private entities are not prohibited by the Fourth Amendment even if those stops or seizures may be offensive, unreasonable, or even illegal. See Skinner v. Railway Labor Executives' Ass'n, 489 US 602 (1989). This is not to suggest that LJI's proposed actions fall into any of those categories, but rather to emphasize how much more leeway private entities have from government entities. However, when the private entity becomes an agent of the state, then their conduct is restricted, and potentially prohibited, by the Fourth Amendment. The test or factors used to evaluate if a private entity is acting as a state agent are:
1) Did the state direct or participate in the search or seizure?
2) Did the private person conduct the search with the intent to help police or discover evidence?
The airport has been advised by our legal counsel that an MOU with LJI would constitute an agreement where AIA was effectively giving direction to a private entity. Our counsel stated the MOU expressly states the activities are "conducted jointly." Furthermore, the concept of LJI monitors operating in secure locations of the airport require us run background checks on the monitors and provide them badges to access secure locations at the airport not available to the public. Our legal advisers content these actions would cause courts (and the pubic) to view the LJI monitors as agents of the state. Then there is concept that the entire agreement, and LJI mission, seems predicated on gathering evidence to help police. While we appreciate those efforts, they also will result in the courts deeming your monitors as our agents.
Fourth Amendment Issues
State agents are allowed to approach and speak to citizens. The crux is whether a reasonable person would believe he/she was free to leave or otherwise terminate the encounter. See Florida v. Bostick, 501 US 429 (1991). Absent the perception that a citizen is free to walk away, our lawyers tell us such conversations can
Alaska International Airport System
become a violation of constitutional rights. The MOU explicitly references LJI monitors moving potential victims to a secure location for an "in-depth interview." Approaching people behind TSA security at an airport and asking them to accompany you to an even more secured location would be considered a "seizure" and present legal issues both criminal and civil. In the criminal case, our prosecutors tell us evidence collected in this manner would likely be suppressed. While our civil lawyers tells us such a seizure without a warrant could result in civil suits for a violation of constitutional rights. We discussed the concept of consent on the part of the person approached, but our lawyers insisted that Alaska's courts would view such consent very dubiously under Alaska law on consent.
Aside from the issues around the contact of victims, there are concerns about another Fourth Amendment issue: profiling. LJI's website instructs staff to "intercept when there is a high risk of trafficking" because the victim "matches a profile targeted by traffickers." The data the MOU indicates should be collected also discusses “analysis and research into trafficking demographics.” This language suggests the data collected would be used to develop profiles of victims and traffickers to help identify future potential victims and traffickers. Profiling, absent other articulable circumstances, as a basis for stopping someone presents constitutional issues under the Fourth Amendment of the U.S. Constitution and under Article I Section 14 of the Alaska Constitution. See U.S. v Sokolow, 490 U.S. 1 (1989). This present further legal issues both criminal and civil-should evidence be gathered in this manner.
These issues standing alone serve as a basis for the AIA to decline to enter into a MOU. However there are further issues identified by our legal counsel.
First Amendment Issues
The First Amendment of the U.S. Constitution and Article 1 Section 3 of the Alaska Constitution require a separation of church and state. According to LJI training materials found on the organization's website, after a victim of trafficking has been identified, the "opportunity to hear the gospel message" should be provided as part of victim care. While there are people employed at the airport who support such views in the personal capacities, we must remain neutral on religious matters when acting as government employees. Such a neutral position is impossible when state action1 occurs while LJI website directs monitors to share the gospel message with victims or potential victims. Such actions would expose the state to potential civil liability and could undermine any effort in prosecution.
The state is not suggesting your monitors should not share the gospel message. Rather we are simply saying we cannot participate or endorse those efforts because of the restrictions placed upon us by the federal and state constitutions.
Civil Liability Exposure
Even if LJI promised to defend and indemnify the state in the event of civil lawsuits, it is unclear that such assurances would be enough. The extent to which LJI carries insurance protecting against such risks is unknown, as is the extent to which LJI has assets available to fund the defense of claims not covered by insurance.
Setting aside these litigation risks, AIA does not permit organizations to undertake activities within the airport premises without worker's compensation or similar types of insurance coverage and accompanying waivers of subrogation by the issuing carriers to guard against more mundane personal injury claims such as slips and falls. In its present form, the MOU would permit LJI monitors who suffered any type of personal injury while on the airport premises to bring tort claims against the AIA and the state. Given LJI's non-profit status, the organization's ability to provide such insurance coverage is, at best, uncertain.
Law Enforcement Coordination Concerns
If the challenges with pursuing criminal prosecution and avoid civil liability were not enough, our law enforcement partner agencies expressed concerns about the potential of LJI monitors to unwittingly interfere with law enforcement activities within the airport. The only way of managing this concern would be for
1 Entering a MOU, providing background checks and badges to LJI monitors, giving them access to restricted areas of the airport, agreeing to LJI interrogating citizens who are potential victims or at high risk of being a victim all indicate the state supports LJI
Ted Stevens Anchorage International Airport | P.O. Box 196960, Anchorage, Alaska 99519 | 907.266.2526 | anchorageairport.com
persons or
members of the Airport Police to supervise the activities of LJI monitors and steer them away from places of interest to law enforcement agencies such as the State Troopers, U.S. Customs, DEA and FBI that routinely conduct surveillance or investigative activities within the airport. The responsibility of having to effectively chaperone LJI monitors would detract from the ability of Airport Police to manage the other tasks to which they are assigned.
So while we commend LJI for your efforts to combat human and sex trafficking, the airport simply cannot sign a MOU for your monitors to operate behind TSA security.
Sincerely,
Aaron Danielson
Chief of Airport Police & Fire
Ted Stevens Anchorage International Airport
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