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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

Rich People Skip TSA Body Scanner, Get PreCheck Access at JFK Thanks to AA “Flagship First” Entrance

AA Flagship First Dining
The menu I received for the “free” restaurant access with AA Flagship First

I don’t often purchase full-fare first class tickets, and at the beginning of the year I switched loyalty programs from American to Delta after merging with US Airways caused AA’s service to plummet (hey, who could have predicted that merger would hurt consumers?!).  So I’ve never had access to AA’s Flagship First program before, which entitles guests to ultra-premium lounge access, including no-charge “fine dining,” and a special airport entrance, for those flying in first class direct between JFK and either LAX or SFO.  But, I had some AA miles to burn and booked the flight for today.

You’ll imagine my surprise when I walked through the VIP entrance and was immediately placed in the PreCheck queue.

TSA PreCheck is designed to allow people to submit to a background check and thereafter skip the most invasive of the security the TSA imposes upon us — including the nude body scanners and full-body pat-down.  The idea is that passengers can be pre-screened to ensure that they are less of a security risk and thus it becomes unnecessary to use normal security practices.

The wisdom of PreCheck not withstanding (it relies on the premise that the government can predict who is a terrorist and who is not, a premise that I’m not sure is founded), the program is entirely undercut if one can get PreCheck benefits by splurging about $1K (or 50,000 AAdvantage miles, in my case) on a premium ticket.  American Airlines and the TSA are literally allowing flyers to buy their way out of security procedures.

In the meantime, your 80-year-old grandmother is still getting rubbed down for weapons and your 2-year-old’s baby bottle is still being tested for explosive residue.

Anything for our profits safety, right?

 

How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you.  I’m telling you what we’re supposed to do.  I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers.  [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong.  Ok?  Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas.  Others are perfectly clear.  Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear.  From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted).  The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me.  Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated.  It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime,  at the least we can get a laugh out of the end of the video.  The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”

 

Twitter to Ban Users Who “Affiliate” With Organizations That “Promote Violence”

Twitter is a private company that has a right to allow and to ban whatever speech they would like on their platform.  But its users also have the right to call them out on using that power to silence debate.

Twitter has announced that starting December 18th, they will not allow users who “affiliate with organizations that … use or promote violence.”  They make clear that it matters not whether the organization is allegedly violent “on [or] off the platform,” and do not define “affiliate” or “violence:”

Twitter's New Policy

Source: Twitter

This leaves open a lot of important questions:

  1. What counts as a “violent” organization?  Does Black Lives Matter fit?  What about “alt-right” protesters?  Does the group need to be “illegal?”  (Under which jurisdiction’s laws?)  What about groups fighting for active revolutions (and does it matter if they are oppressed peoples fighting against an abusive government)?  They do say the ban is limited to “violence against civilians,” so maybe it’s ok to call for the death of U.S. soldiers?  What about violent governments?  Are we taking a side on the Israel-Palestine issue?  What about violent individuals who don’t really have an organization — or are in a loose, decentralized group like “Anonymous” — but want to see the world burn?
  2. What does it mean to “affiliate?”  Do I need to be a card-carrying member?  A leader of the organization?  Or is just posting, “I support X” somewhere on the Internet good enough?  What about mere sympathy, even if I expressly state that I am not a part of the group?  What if I support their philosophy, but not their violent means?  Will promising that I don’t — or no longer — belong to the group get me un-banned?
  3. How will Twitter be tracking affiliations assuming users don’t announce them overtly on the Twitter platform?  Will it be looking through other social media platforms?  Will it use tracking cookies to ban people who visit certain Web sites?  If I “Like” or “Re-Tweet” something verboten, is that enough?

It makes sense that Twitter doesn’t want to be a platform for terrorists to spread their message (even though promoting foreign interference into U.S. elections is no problem for them).  So why not say that, and do that, instead of changing your terms to something entirely amorphous with vague insinuations of an intent to play Big Brother?

Three Down, One to Go: Final Year of Law School at NWCU

NWCU Enrollment Documents
My final course enrollment documents, for NWCU’s 4L program.

I announced that I was entering Northwestern California University‘s law program on November 16th, 2014, which was also the four-year anniversary of my first civil rights litigation.  Now three years later, I’ve taken my 3L final exams and I’m still on track to graduate in November 2018, attempting the California Bar Exam in February 2019.

I feel like my previous review of the school + study tips still accurately reflect my thoughts on the program.  tl;dr: all the tools to study the law are there, but there’s no one holding your hand to use them.  Proceed only if you have a passion for studying the law, because otherwise you won’t be able to stay with the 2+ hours per day, every day, for 4 years.

My school year having concluded, especially on a Friday, it’s time for a few beers…

State Bar of California Agrees to Re-Write FYLSX Grading Description

Earlier this year I sued the State Bar of California for incorrectly stating that their “First Year Law Students Exam” consists of two sections — a multiple choice and a written section — that were graded equally.  In fact, the scaling methodology used to attempt to normalize the scores against previous sittings of the exam effectively made the written worth 37% more than the multiple-choice on the exam I sat for in June 2016.

Today I’ve reached a settlement agreement with the State Bar to re-write their grading policy to more accurately describe how the exam is actually graded.  The updated policy description will disclose to all preparing for the exam that:

Through a process known as “equating”, the multiple-choice raw scores will be converted to a scale with a theoretical maximum of 400 points. Because there are multiple forms of the examination, this process adjusts for the possible differences between forms and administrations of the examination in the average difficulty of the particular version of the examination that the applicant takes.
. . .
The raw essay scores will be converted, or “scaled” to a distribution that has the same mean and standard deviation of multiple-choice scale scores.

Although the process of normalizing to a mean and standard deviation is far from standard (math described here) and every mathematician I’ve spoken with has told me the accepted practice for grade scaling is to take the highest score earned, create a formula that makes it the highest score possible, and scale all other scores in line with that formula, the State Bar is free to use whatever formula they want so long as they don’t mislead exam takers.

Anyway, I’m pleased with the outcome and hope that future law students benefit from knowing that they better hit the sample essays much harder than the practice MCQ’s!  If you’re currently preparing, I also made a detailed post of study tips.

No, Sex Offenders Shouldn’t Get Marked Passports

The media has reported that the U.S. State Department has begun revoking the passports of certain sex offenders and requiring them to get new passports that will now conspicuously state:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).

IMG_20171106_230520Definitely not the endorsement I’d prefer to have on my passport.  Diving a bit deeper into the law, the change seems mandated by Congress in a fairly bi-partisan bill in 2016, quickly signed by President Obama.  It applies to all “covered sex offenders,” which in this case means you’re been “convicted of a sex offense against a minor” in any state and that you’re still subject to any state’s sex offender list registration requirement.

There are many reasons why this is a dumb idea (none of which are that sex offenders don’t deserve to be punished).  Allow me to propound a few:

1. Our Current Sex Offender List System is Broken

I think we can all agree that once a sex offender has served his or her time in prison, our #1 goal should be to ensure that they do not re-offend upon release.  So what do we do?  We make it so that they can’t ever get a decent job, we make it so that they often cannot find affordable housing and live or even live with their families, we stigmatize them wherever they go, and if they slip up with often onerous registration requirements, it’s back to jail.  All by putting them on “the list.”

Miami, for example, bans sex offenders from being within 2,500 feet of where children “congregate.”  That’s half a mile.  How many apartments in your community are not within half a mile of a school or a park?  The result: dozens of sex offenders live under a bridge, because there is simply not enough housing outside of 2,500 feet to house them all.

To many, the above yields a response of, “Good, they deserve it.”  But, lack of empathy notwithstanding, the problem is that someone with a job and a stable home is going to be far less likely to re-offend than someone who’s forced to live on the streets with a bunch of other sex offenders.  You might not like the idea of helping a rapist get back in the workforce, but failing to do so increase the risk of a new victim.

Until we reform our current sex offender list systems, I’d oppose any attempt to expand them.

2. The Government Has Lied About Recidivism

“[T]he average member of the general public believes that 75 percent of sex offenders will reoffend,” according to a study on the matter.  Indeed, the U.S. Supreme Court itself has quoted “80%” as being the recidivism rate.  McKune v. Lile, 536 U.S. 24, 33 (2002).

But as the New York Times recently reported:

A few years ago, Ira Ellman, a legal scholar affiliated with the Center for the Study of Law and Society at the University of California, Berkeley, and the researcher Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

Needless to say, the author of the Psychology Today article has recanted his number, and that most actual scientific studies put the actual 3-year recidivism rate at 3.5%According to the Department of Justice, “Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.”

So, no, these lists are not justified by some special risk of recidivism inherent to this particular type of crime.  All criminals released from prison have a risk of a repeat, but the number for sex offenders simply is not that high.

3. It’s a Lot More Than Child Molesters

Let’s say you’re a mid-20s guy and you head out to a bar in Venice Beach, CA.  You meet a beautiful girl inside and end up taking her home with you.  Just to be extra careful, you check her ID, which indicates that she’s 21.  But after you have sex, you learn she’s not — she’s actually 17.

If you get caught, even though you met her in a bar and you checked her ID, you’re going to jail and you’re going to be on the sex offender list, and now you’re getting your passport revoked so that the government can add a scarlet letter to the new one.  Even if you went through heroic efforts to ensure that she was of legal age, mistake is no defense in California (as in most states), and you’re… well… fucked, so to speak.

In some states, public urination is a sex offense.  If you do it near a school, or a child happens to see you, does that qualify you for the new visa marking?  It very well may.  Same with the teenage couple where one is a little over the age of consent and one a little under.  Same with the teen convicted of possessing child pornography of his or herself.

Frankly, our sex offense laws are inconsistent and often unjust (and that goes both ways — there are also many who should be punished that are not).  Until the laws are fixed, we should not be adding to the problem with new punishments also to be implemented unjustly.

4. So Why Not Murderers?  Drug Traffickers?  Mafia Members?

If we’re going to release dangerous people from prison — and why we apparently do that is beyond the scope of this post — why treat a sex offender worse than a murderer?  Why not add a label for people who smuggle drugs when they travel (something actually relevant at the border)?  What about international mobsters?

Because this is just like the TSA — it’s security theater.  These are measures that make people feel good, or at least feel like Congress is doing something, even when they’re not.    The U.S. already sends sex offender information to many foreign countries as our citizens depart for them.  This law just allows our legislators to go home to their constituents and pretend that they did something to protect the children.

5. These People Have Already Served Their Time

I think there should be significant prison sentences for sex offenders — enough to strongly deter them and others from committing the crime and to rehabilitate the offender as much as possible.

But once a person has re-paid their debt to society, it’s simply unfair to add a new penalty.  So-called “ex post facto” laws are forbidden by the Constitution, but we get around that by pretending that these registration requirements are not criminal laws but rather public safety laws.  That distinction is certainly not comforting to those who can’t get jobs or find apartments as a result.

Again, many perhaps don’t care, or will frame this as being “sympathetic to sex offenders.”  But as a civil libertarian, I know that the easiest way for our rights to be eroded is to blame terrorism or pedophiles.  Nearly every privacy grab has been on one of those two bases, from secret FISA spying to warrantless searches of digital devices at the border.  Let’s not put up with infringements of the rights of sex offenders just because we don’t like them, because once sex offenders lose those rights, the rest of us do too.

DHS to Expand Security Interviews on International Flights?

Security Interview Sticker
Well-Behaved Travelers Get a Sticker After a Security Interview!

I was almost booted from a Christmas 2014 flight from London to New York for refusing to answer questions posed by airline staff (not customs) about what I would be doing in my “destination” (a.k.a., my home), and I was clearly told that failure to participate in their “security interview” would result in denied boarding.  After the flight, I sued the U.S. Department of Homeland Security, who encouraged several foreign-flagged airlines at several “airports of interest” to implement these policies.  The U.S. government immediately backtracked, saying in court that interviews were not mandatory and could not result in denied boarding — that these airline employees were mistaken.

That front has been quiet for the last year or so, until the media yesterday reported that airlines are increasing security for U.S.-bound flights starting today, including “security interviews:”

New security measures including stricter passenger screening take effect on Thursday on all U.S.-bound flights to comply with government requirements designed to avoid an in-cabin ban on laptops, airlines said.

Airlines contacted by Reuters said the new measures could include short security interviews with passengers at check-in or the boarding gate, sparking concerns over flight delays and extended processing time.

As it would be trivial for someone with bad intent to invent a story about where they were going, or simply leave off the part of their plans that involves blowing stuff up, the airlines are, apparently, displeased with this nonsense:

“We see this as a big issue for China Airlines,” Steve Chang, senior vice president…

It’s just inconvenient for the passengers,” [Korean Airlines] President and Chief Operating Officer Walter Cho told Reuters in Taipei.

“Unilateral measures announced without any prior consultation… That is something that is very concerning and disturbing.” [Alexandre de Juniac, CEO of IATA (International Air Transport Association)]

So what happens when a passenger refuses to participate in the security interview this time?  Well, it just so happens that I’ll be on an inbound flight quite soon, so we’ll see, as I certainly won’t be participating, and I guarantee a lawsuit in 24 hours or less if denied boarding.

Update: DL inbound flight today, “interview” consisted of making sure I packed/watched my bags.  Nothing new here except it was asked at the gate. Will look forward to hearing experiences by other travelers.

YouTube Removes Gun Videos Showing Legal “Bump Stocks” After Vegas Shooting

I wouldn’t call myself a gun expert, but I am pretty familiar with gun laws and what may be legal to own in the United States versus what isn’t going to fly anywhere in the country.  After watching a couple of videos from the saddening incident in Las Vegas last week, I hypothesized on a Facebook post that the shooter probably had a “bump stock,” along with a YouTube video I found demonstrating the device:

The Bump Stock Hypothesis

My hypothesis — based on the rate of fire I could hear in the videos and knowledge of the difficulty any civilian in this country would have obtaining a real machine gun — was confirmed after photos leaked from the shooter’s hotel room.

If you’ve not yet become familiar, the “bump stock” is a legal rifle modification that is just two pieces of plastic with a spring between them.  The spring allows the trigger to release itself using the kinetic energy of the gun, allowing for the firing of the next round far faster than would be possible by manually releasing the trigger.  They are sold for as little as $100, and some gun enthusiasts have pointed out that with practice, you can use your shoulder like the spring and get faster rate of fire even without the $100 mod.

But when I went back to the video that I had posted, I got the following message:

YouTube Gun Censorship

YouTube, it seems, has now decided that videos showing perfectly legal guns in perfectly legal ways are “harmful or dangerous content” that violates its content policy.  People shooting real machine guns can still be found all over the site, and indeed, they haven’t gotten around to banning all the videos yet, but several of the videos that had been around for years have now disappeared.

I’m apparently not the only one who noticed.

I must assume that reason behind this is to make a political statement in favor of gun control, but why?  Watching videos of bump fire in action is pretty shocking when you’ve never seen it before, and if anything, I’d expect it would prompt the public to call for their immediate ban.  Google has, quite simply, taken it upon itself to impose its morals on all of us and to deprive the public of information.  Given the control over the Internet that Google has, I think we have a right to demand some objectivity rather than moderation practices based on emotions and feelings.

 

Should Universities Really Be in the Business of Adjudicating Rape Claims?

Betsy DeVosA few days ago, Secretary of Education Betsy DeVos rescinded informal guidance given by the Obama administration to universities as to how to apply “Title IX” — a law prohibiting discrimination based on sex in schools that accept federal funding.  Despite the public outrage and my general feeling that Secretary DeVos is unqualified for her role, I think she may have gotten this one right.

Why would I say such a thing?!

The guidance that she cancelled, known as a “Dear Colleague Letter” (full letter) attempted to persuade universities in particular to step up and deal with sexual violence on-campus.  This is, indeed, a laudable goal: no one should be subject to any kind of violence while pursuing their education, and sexual violence is a particularly pernicious and all-too-common strain of violence present in American colleges (…and it’s not just an American problem).  The problem is that Title IX deals with sex discrimination, and has been interpreted expansively to cover sexual harassment, but expanding even further to sexual violence is something that Title IX simply lacks the basis and framework to do.  The result: universities that attempted to implement the Obama-era guidance found themselves veering into the fields of law enforcement, prosecution, and the running of trials, when they were ill-prepared to do so.

Case-in-point: Doe v. University of Cincinnati, 2017 U.S. App. LEXIS 18458 (6th Cir., Sept. 15th, 2017).  “John Doe” was accused by “Jane Roe,” both students at University of Cincinnati, of having sex with her without her consent (something the court puzzlingly fails to call “rape” at any point in its 19-page opinion), while John maintained that the sex was consensual.  Jane made the accusation 3 weeks after the alleged incident.  “UC’s Title IX Office waited a month to interview Roe, another four months to notify Doe of her allegations, and yet another four months to convene the … hearing.”  Despite Jane failing to appear at the university hearing, John was found responsible for violating the code of conduct — in other words, the university alleged he was guilty of rape without any in-“court” testimony against him — and suspended him for 2 years.

Let’s be clear here where the university and even the courts were not: John isn’t accused of some kind of mere college code violation: he was accused of rape.  He would never be able to honestly explain to a potential employer the gap in his education and would certainly be infamous on his campus as the local rapist any time he stepped foot near the school.  And so, the U.S. Sixth Circuit Court of Appeals affirmed a lower court ruling enjoining the university from enforcing the suspension on due process grounds, ruling that the absence of any witnesses against him actually appearing and answering questions at a hearing, especially in combination with the school’s failure to promptly investigate and adjudicate the matter, did not constitute a fair hearing and thus was insufficient for the state (of which the public university is an arm) to take a life-ruining action against him.

It is certainly a good thing for colleges to have a mechanism to resolve petty disputes between fellow students, as well as to have programs to reduce sexual harassment and resources to support those who have been victims of any and all kinds of traumatic experiences.  In the case of actual sexual violence, however, why would we not turn the case over to real authorities, who have real resources to investigate this real felony allegation, to be tried in a real court, and upon conviction result in a real prison term?  It would seem to me that UC’s system is fair to neither the accuser nor the accused.  If this woman was indeed raped, a 2-year suspension from college is hardly sufficient punishment for the man who violated her.  And on the other side, anyone facing such a serious accusation deserves the rights we give to criminal defendants: to confront his witnesses, to gather and present evidence, to be represented by competent counsel, and to otherwise have the very fundamental things that we in this country take for granted as necessary before society will take away someone’s liberty.

Secretary DeVos probably could have accomplished the above by modifying, rather than rescinding the entirety of, the Dear Colleague Letter.  But, to the extent that her point was that schools should be in the business of educating, not in the business of operating as a complete legal system, I think she may have a point.

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