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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

Should You Agree to “Arbitration Clauses?”

arbitrationIt is increasingly common to find consumer contracts (the things you agree to when you buy stuff or services, like a rental car, Netflix subscription, or anything that contains a written warranty) containing “arbitration clauses.”  They’re usually in capital letters or bold print, most often buried many clauses deep in the contract, and say something to the effect of this:

…IN THE EVENT A DISPUTE SHALL ARISE BETWEEN THE PARTIES TO THIS CONTRACT, IT IS HEREBY AGREED THAT THE DISPUTE SHALL BE REFERRED FOR BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. THE ARBITRATOR’S DECISION SHALL BE FINAL AND BINDING AND JUDGMENT MAY BE ENTERED THEREON…

What this language means is that if you and the company have a dispute, you both agree that you won’t take it to court, but will instead hire a “neutral” “arbitrator” to resolve the issue.  The arbitrator can award any amount of money he or she sees fit, based upon the contract and the law.

Here’s why this sucks for the consumer:

  1. Your right to proceed class action is cancelled.  A “class action” is a lawsuit where lots of people claim that a company wronged them in the same way.  Generally, it is for small amounts (maybe only a few dollars) that wouldn’t make sense for 1 person to waste their time going to court for, but if there are 10,000 people just like you and you can all sue in one joint lawsuit, the company can be held accountable.  You generally can’t “contract away” the right to proceed as a class under most states’ laws, but by requiring arbitration, the Federal Arbitration Act (FAA) takes over the terms of dispute resolution, and the FAA allows for class rights to be signed away.  You should therefore take an arbitration clause as a sign that the company is afraid that it has, or may, piss off a large consumer base, and wants to protect itself from any damages that can come from that.  It’s a bad sign.
  2. Your right to an appeal is cancelled.  An arbitrator’s award, in general, cannot be appealed.  Did your arbitrator turn out to be biased, or literally fall asleep during proceedings?  Too bad, according to the FAA.  With exceptions too narrow to be worth pursuing, a court cannot overturn an arbitrator’s award, no matter how unfair.
  3. Your right to a cheap, quick resolution of small claims might be cancelled.  Some arbitration clauses allow small claims to be heard by a small claims court — and some arbitrators refuse to hear cases based on contracts without such an allowance.  This is a good thing: small claims can generally be resolved in less than 3 court appearances, for nominal court fees, without the need for an attorney, and within a few months.  But, some arbitration clauses do not allow for this, and therefore even a claim for $5 comes with a hefty arbitration fee and longer, and more difficult, proceedings than in small claims court.  The text of the arbitration clause will tell you if you can resort to a small claims court, but even this is not guaranteed, as some states will allow any party in small claims court to move a case to a regular civil court, at which point the company can argue that arbitration is now required. (Not the first time I’ve written about Citibank being sneaky and abusive!)
  4. No case law is created.  “Case law” is the decisions of courts in the past that influence decisions of courts in the future.  For courts of the same jurisdiction and same level or lower, a decision on an issue is usually binding.  For example, if the U.S. Supreme Court decides that TSA body scanners are unconstitutional and Plaintiff X, who was forced to go through one, gets $100 in damages, every other court in the country must follow suit and award similar damages to anyone who presents a similar case.  When an arbitrator makes a ruling, it may or may not be public, but either way, it is binding on no one.  Therefore, if the company has wronged 10 people in the same way, but has an arbitration agreement, even if the 1st to arbitrate wins, people 2 – 10 still need to argue the issue anew.
  5. Oh, you thought the arbitrator was neutral?  There’s a pretty big conflict of interest here.  The companies are the ones including arbitration agreements in their contracts and sending work to the arbitrators.  If one of the two parties sends all the work and the other does not, where does loyalty lie?  Even if an individual arbitrator is conscientious enough to remain neutral, what effect does the conflict of interest have on the rules that the arbitrator has to follow?

For balance, I’ll note that arbitration can have some benefits for the consumer.  For example, if the claim is for a large amount of money, it will be a shorter “trial,” and therefore you’ll be paying your attorneys less money.  Arbitrators are also more likely to award attorney’s fees to you if you win.  Also, in non-consumer contracts, you may sometime have an edge.  A friend of mine involved in an employment contract dispute against a major corporation recently lamented to me that the attorney’s fees to take the major corporation — which could afford to prolong litigation to gain an advantage — may be unsustainable, forcing this friend to consider settlements beneath what his or her claim was worth.  But in consumer contracts, the overall balance is clearly in favor of the company (which, of course, is why they put the clause in there in the first place).

But what can you really do about it?  Well, to start, many arbitration clauses have an “opt-out” option, whereby you notify the company that you disagree, and the clause no longer applies.  If this is an option in your contract, follow the instructions carefully to make an effective opt-out (before the TSA bans those opt-outs too :)).  If it doesn’t, you can try negotiating the contract, even if the company is large.  If it’s a paper contract, you may “negotiate” simply by crossing out the provision and initialing the change before signing. You’d be shocked as to how many times I’ve crossed out arbitration agreements and simply said, “I don’t arbitrate,” and they’ve said “Um, ok I guess.” If all else fails, tell them you’re heading to a competitor.  Lost sales are, in the end, the greatest motivator to companies to create fair agreements with their customers.

Update: TSA Asks Court Not to Hear Brief Regarding Stay

Earlier today, I posted the briefs relating to my motion to stay the TSA’s new rule allowing it to refuse opt-outs.  Not long after, I received an e-mail noting that the TSA will oppose allowing the court to consider my reply brief.

Why? Because it’s long.

The Federal Rules of Appellate Procedure govern how things work in cases heard by the Court of Appeals.  Indeed, Fed. R. App. P., Rule 27(d)(2) limited my reply to 10 pages, when it was 19, “unless the court permits or directs otherwise.”  My reply was filed along with a routine motion for permission to file excess pages, and I’ve actually never seen such a motion opposed, let alone denied.

In my reply brief, I noted that “avoidance of judicial review” is common for the TSA, which argues anything it can to get a court to decline to even consider whether the TSA’s actions are lawful.  It’s wrong, and plainly, it’s against the deep-rooted American value that we should be able to meaningfully petition our government for redress.  To reply to a brief accusing you of evading judicial review with a request that the court not hear the brief is the definition of an agency — and its attorneys — demonstrating their contempt that one would dare to challenge them.

I take this as a positive: I don’t expect the court to refuse to hear my brief, and I don’t think the TSA would have filed such a disfavored opposition if they weren’t scared that my Motion to Stay had a chance of being granted.

Corbett v. TSA IV – Opposition to Motion for Leave to File Excess Pages (.pdf)


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Motion to Stay TSA No Opt-Out Policy Fully Briefed

When I challenged the TSA’s new policy allowing it to refuse a request to opt-out of going through the body scanners in favor of a pat-down, I included a motion asking the U.S. Court of Appeals to stay the TSA’s new policy until the case is resolved.  That motion is now “fully briefed,” meaning the court may rule on it at any time:

“The TSA’s opposition to the instant motion fails to explain why it felt the need to make the policy change in question.   Respondent summarily states that ‘[p]reventing TSA from requiring certain passengers posing a heightened security risk to undergo AIT scanning would undermine national security and jeopardize public safety.’  But unlike when it rolled out the body scanner / pat down program in 2010 and clearly told the public that it needed to do so to stop nonmetallic explosives, the TSA has never explained why it feels that passengers posing a ‘heightened security risk’ need to go through a body scanner instead of a pat down. If something has changed such that there is, all of the sudden, a new, compelling reason [that pat-downs are insufficient], the TSA must identify that to the Court rather than make generic statements about how they are charged with providing aviation security and want to do what they want to do because they know best.”

I also asked for oral arguments on the matter before the court rules, but I think it’s likely that they will rule simply on the documents without hearing us in person.  Source documents (my motion, their opposition, and my reply to their opposition):

Corbett v. TSA IV – Motion to Stay (.pdf)

Corbett v. TSA IV – Opposition to Motion to Stay (.pdf)

Corbett v. TSA IV – Reply to Opposition to Motion to Stay (.pdf)

As we wrote about this week, the TSA’s body scanner & pat down program was opposed by 94% of the public when asked for formal comment.  The idea that they would take public comment, hear negative feedback, and then double-down on exactly what the public asked them not to do by making it mandatory is insulting and emblematic of the TSA’s failure to serve the public rather than do as it pleases.

If you were one of the many who have donated since this challenge was filed a few weeks ago, this motion happened because of you — thank you once again!

Public Comments on TSA Body Scanners Counted: 94.0% Opposed

Before making a “substantive change” to regulations affecting the public, the TSA, like all government agencies, is required to engage in “notice and comment rulemaking.”  The basic idea is that before a rule gets made, the agency should publish the proposed change and their reasons for proposing it and allow the public to provide feedback. The agency then reviews the feedback, responds to it, and decides whether or not to proceed with the proposed rule.

The TSA failed to do this before implementing the rule establishing the body scanners as primary screening in 2010, but was ordered to do so post hoc by the U.S. Court of Appeals for the D.C. Circuit, and did so in 2013.  Over 5,500 people took the opportunity to tell the TSA how they felt.

While a quick look made it clear that the overwhelming majority was opposed to the scanners, there was no way to get a count of exactly how many were in favor and how many were opposed.  So, I personally reviewed the 5,578 comments sent in and found as follows:chart

Opposed to the Rule: 5,129 92.0%
In Favor of the Rule (Implants): 115 2.1%
In Favor of the Rule (Other): 214 3.8%
No Position: 120 2.2%
Total: 5,578 100.0%

 

When all was counted and the comments that took no stance were removed, 5,129 people (94.0%) asked the TSA to discontinue its program of scanning and molesting the public, while 329 (6.0%) were in favor of continuing.  It should also be noted that of the 329 in favor, 115 specifically mentioned that they were in favor because they or a family member has a metal implant in their body (such as a hip replacement, or a pacemaker) that could not pass through a metal detector and that they liked the body scanners simply because they were tired of being patted down by blue-gloved security personnel.

Of those opposed to scanning, the following were the most common reasons given (percentages approximate): invasion of privacy (~34%), violation of rights/unconstitutional (~31%), health risks (~23%), ineffectiveness for security (~12%), cost/benefit analysis (~11%), concern for effects on children (~5%), and a distinct group that requested the TSA to be completely disbanded, defunded, and/or privatized (~2%).

Of those in favor of scanning, the following were the most common reasons given (percentages approximate): artificial implant (~35%), feel safer (~29%), efficient (~7%), effective (~6%), “not a big deal” (~2%), too many “whiners”/”cry babies” (~2%).  Many did not give a distinct reason, simply saying they support whatever is chosen or necessary.  A large percentage also qualified their support on one or more conditions (“if it’s effective…,” “if it’s safe…”).

So, TSA, the public has spoken, and the consensus is clear: body scanners should not be used as primary screening, and if they are to serve any purpose, that purpose should be completely optional screening for those who cannot go through a metal detector and would prefer it to a pat-down.

For complete transparency, I’ve created and hereby publish a full report, indicating which comments were counted as for/against and discussing the methodology, which can be downloaded here:

TSA AIT Comment Index (.pdf)

To view any of the comments, take the following URL:

http://www.regulations.gov/#!documentDetail;D=TSA-2013-0004-XXXX

…and replace the XXXX at the end with the 4 digit comment number from the index.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

TSA Tries to Force Wheelchair Passenger to Stand for Body Scanner

The TSA announcement on December 18th, 2015, that the body scanners would “sometimes” be mandatory was phrased like this:

While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers.

…which, as someone experienced in translating TSA-speak, I assumed to mean, “We will force you through the scanners whenever the hell we want, especially if we don’t like you on that day.”  But, there were then early rumors that by “some passengers” the TSA was referring only to those on the “selectee list” — an FBI-managed list, much like the no-fly list, that identifies passengers who may fly but only with additional screening.

Those early rumors have been thoroughly dispelled now that reports of actual travelers at the airports are coming in.  Last week, one of our readers reported that despite being PreCheck, she was forced towards the body scanners, only receiving a reprieve by informing them that she is pregnant.  And then, a couple days ago, the TSA attempted to make a passenger in a wheelchair, who was neither PreCheck nor selectee, stand for a scan:

“If you’re able to stand up, you will go through there [the body scanner], you cannot refuse screening.”

~~TSA Supervisory Transportation Security Officer Abdi, SEA Airport, 12/31/2015

Unfortunately, the passenger in the wheelchair is Sai, another civil rights advocate who litigates against the TSA, and Sai caught it all on video:

While, after summoning the highest ranking TSA official in the airport and going through lengthy waits and arguments, Sai eventually was allowed through with the “opt-out” procedure, it seems perfect clear that the TSA is caught in a lie once again: its intent was not that “passengers may generally” opt-out, but rather its intent was that as many be forced through these machines as possible.  To do so to someone who is partially disabled and has difficulty standing on his own for long periods of time is absolutely disgraceful, yet not surprising from this agency.

If you have post-Christmas opt-out stories, please share them with us.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT :)

New Twitter for Professional Troublemaker… Can We Follow Each Other?

Since 2010, I’ve been using the Twitter handle @tsaoutourpants, but we recently re-branded from the beloved “TSA Out of Our Pants” to “Professional Troublemaker” to reflect that I’m now working on advocating civil rights advocacy on other issues as well.  So, I figured it was appropriate to start the new year by updating that Twitter username to @_JonCorbett.

If you already followed @tsaoutourpants, you’re automatically already following @_JonCorbett, but if you haven’t yet, please come follow my updates on the Twitterverse!

TSA: You Should Have Known We Were Going to Make it Mandatory!

Lawyers for the TSA simply do not care if they are on one side of the argument today and a different side tomorrow when it suits them better.  Throughout the litigation that occurred in 2010 – 2014, in every case where people challenged the nude body scanners, the TSA stated that the fact that they are optional — because anyone can ask for a pat-down instead — is a significant factor in their constitutionality.  In one of my cases, for example, they argue that AIT isn’t so constitutionally offensive in this sentence:

“And as the D.C. Circuit has noted, a passenger may choose between AIT screening and a pat-down, ‘which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.'”

~~ Corbett v. TSA, 12-15893, Appellee Brief, pp. 28, 29,  January 28th, 2014, citing EPIC v. DHS, 653 F.3d 1, 10.

See if you can spot the difference between the TSA’s argument above from 2014, and their argument filed today in Sai v. Neffenger, a case by another individual opposed to TSA body scanners who filed an emergency motion for temporary restraining order last week.  This argument tries to explain that the TSA didn’t really issue a new rule by making the body scanners mandatory:

“Interested parties should have anticipated that TSA might require mandatory AIT screening, and thus reasonably should have filed their comments on the subject during the notice-and-comment period [in 2013].”

~~ Sai v. Neffenger, 15-2356, Opposition to Motion for Emergency TRO/PI, p. 10, December 29th, 2015 (internal citation omitted).

In other words, despite the fact that the TSA was arguing in courts across the country that there was nothing to worry about because the scanners were optional, we all should have known that eventually, the TSA would make them mandatory.

TSA, it’s not that we all didn’t know that you were going to force these machines down our throats whenever the original controversy started to die down.  It’s that you argued that you wouldn’t in court in order to get your way, and now you’ve changed your position but think the courts shouldn’t change theirs.  We’re not surprised, but we are upset, and we’re asking the courts to decline your request to retract your position without retracting the judgment that came along with it.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT :)

TSA Forces PreCheck Passenger To Scanner, Denies Opt-Out

One of our readers, Tara, reports as follows:

“Apparently those of us with TSA Pre-Check are now going to be subject to random compulsory body scans. Yesterday I was flagged while going through the metal detector for Pre-Check in Akron, Ohio. The agent handed me a laminated green sheet and told me I was randomly selected for additional screening and needed to go through the full body screening machine.  When I tried to opt-out I was told that was ‘no longer an option for those with TSA Pre-Check.’”

The TSA originally said that “passengers may generally decline AIT screening in favor of physical screening” but “TSA may direct mandatory AIT screening for some passengers.”  Initial reports were that the policy would affect only selectee list passengers.  But it took them less than 2 weeks to start applying it to whomever they so choose, including passengers who have gone through fingerprinting, a background check, and payment of fees in order to get PreCheck.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT :)

Corbett Sues TSA Over New Policy to Refuse Opt-Outs

Last Friday, the TSA snuck out a document updating the “privacy policy” for the nude body scanners.  On Tuesday, reports started coming in on the change, including right here.  Professional Troublemakers don’t delay, and today, 6 days after the low-key disclosure, I’m happy to announce that I’ve sued the TSA, asking for a preliminary injunction followed by a permanent ban on refusing opt-outs.  But, being Christmas Eve and all, I was sure to make service of the lawsuit festive for the TSA…

20151224_005759

Expertly wrapped in holiday cheer, the TSA shall receive on Friday a petition that asks the U.S. Court of Appeals for the 11th Circuit to consider: 1) whether the body scanner program is constitutional when the option to opt-out is removed, and 2) whether the TSA must engage in “notice & comment rulemaking” before making such a change.  You all may remember that in 2013, the TSA “invited” (after being forced to by the Court of Appeals as a result of EPIC’s lawsuit) the public to submit comments regarding the nude body scanner program.  Over 5,500 of us replied, and well over 95% of the comments were in opposition.  The TSA still hasn’t responded to those comments, but yet feels that it can remove the opt-out procedure without again asking the public or considering our feelings regarding the scanners even with the opt-out option.

In short, TSA, I hope you have a Merry Christmas spent thinking about how you’ve been naughty this year — and every year.

Corbett v. TSA IV – Petition (.pdf)

Corbett v. TSA IV – Motion for PI with Exhibits (.pdf)


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? PayPal :)

TSA To Make Nude Body Scanners Mandatory — No Right to Opt-Out!

Time and time again, the TSA had argued in lawsuits against the nude body scanners that part of why they fall on the “constitutional side” of the Fourth Amendment is that they are optional.

On Friday, the day all government assholery is disclosed, the TSA published a notice that they are updating the Privacy Impact Assessment relating to the nude body scanners as follows:

TSA is updating the AIT PIA to reflect a change to the operating protocol regarding the ability of individuals to opt opt-out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers.

That’s right — the TSA now claims it “reserves the right” to force passengers through the body scanners.

Actually, I think of this as good news.  You see, my last lawsuit was thrown out because it didn’t make it to the right court within 60 days of the release of the scanners.  By changing things around, they’ve now reset the 60 day timer AND adjusted the constitutional balance, meaning my petition will finally get heard.

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