Court of Appeals Rejects Nude Body Scanner Case in 2-1 Split

A matter of days after the TSA announced that its nude body scanners would be deployed as primary screening across the nation, I filed the first court challenge of the constitutionality of requiring Americans to walk through devices that visualize their nude body as a condition of flying. Since November 16th, 2010, I have vigorously and consistently maintained this objection to our government’s foolish behavior, as my case was bounced from court to court while we argued over which court should actually hear the case: the TSA argued that it should be in a court that had no discovery, witness stand, or even real trial (the U.S. Court of Appeals), while I argued that the constitution requires that my grievance be heard in a court that can offer meaningful review (such as the U.S. District Courts). It’s no surprise that by mid-2012, the lower courts decided that the court without discovery, witnesses, and trials should hear the case, due process be damned, and the U.S. Supreme Court declined to take up the issue.

With that matter settled, I continued my case in the court that they told me to file in, but now the TSA had a new objection to my case: that it’s too late now. You see, Congress wrote a law that says “orders” of the TSA must be challenged within 30 days, and the government interpreted this to mean that: 1) even if they keep doing the objectionable behavior (i.e. scanning and groping) daily, after they’ve done it for 60 days, it can never be challenged by anyone, and 2) the 60 days shouldn’t be from when I started my case, but from when I proceeded in the court that they preferred. I asked the court to refuse to adopt this absurd proposition and allow me an opportunity to gather and examine facts before the court.

In a 2-1 vote, the U.S. Court of Appeals for the Eleventh Circuit ruled last Friday that the government’s “60 days, forever immunized” theory is exactly right: the government, without violating your Constitutional right to redress, can create a law that says “once we do it for 60 days, it’s permanent, and we can keep doing it for the rest of eternity and you can’t take us to court!” They also went further and ruled that “even if Corbett had timely filed his petition,” the TSA’s nude body scanners and checkpoint molestations are constitutional — before they ever gave me a chance to ask the TSA for documents or meaningfully question their asserted facts.

In her dissent, U.S. Circuit Judge Beverly B. Martin blasts the majority for issuing the “unnecessary holding” that the TSA’s actions were constitutional, stating that there was no reason for the court to go there at this point since the majority decided it was too late to hear. She continues that “Mr. Corbett’s pursuit appears to me to have been methodical and diligent” and that she disagrees with the court’s decision to “penalize” me for the switch of courts in 2012.

Because there was a split between the judges, there is a higher chance now that the case will be accepted for review by either the full 11th Circuit or by the U.S. Supreme Court. I’ll be filing my petition to ask the full 11th Circuit to hear the case next week.

Corbett v. TSA – Petition Denied.pdf (.pdf)

[Correction – Original post listed the time limit as 30 days.  The statute sets the time at 60 days.]

28 thoughts on “Court of Appeals Rejects Nude Body Scanner Case in 2-1 Split

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  1. Only if there were more people like you and only if the sheep will open their eyes and look at what is really going on do any of us stand a chance of ever changing what the TSA is doing. Good for you Jon, your persistence is admirable.

  2. Jon- your commitment to this issue and to human dignity is truly appreciated! Few people can or will see how utterly vile this entire practice is against humanity. No matter what happens, you have done an amazing job at standing up for our constitutional rights and not giving up.

  3. :facepalm:

    I’m thinking of having some toilet paper printed up with a copy of the Bill of Rights since that’s all it seems to be good for anymore. I never dreamed that the American people would be this blase and complacent about their (our) freedoms, sigh.

  4. Wow… This is a new low, even for the anti-Constitution crowd. To even suggest in the first place that Congress can pass a law that says its other laws can’t be reviewed by a court is insane, but to say it has to be challenged within 30 days and then reject a challenge because it was legally prevented by the government itself from being submitted within that 30 days? That’s completely absurd and worthy at least of censure, if not impeachment, of those involved.

  5. Funny how nobody noticed that TSA searches are useless. Guess how AIRMAIL parcels travel from point A to point B. In submarines?
    While they strip search your grandma, the minimum wage staff is busy filling up the back of those planes with AIRMAIL parcels that are never examined carefully to see if they contain bombs. As a matter of fact it is ILLEGAL to inspect airmail parcels!!!

    Think a moment about the logistics of (1) Finding a suicide bomber and (2) training him and getting him on an airplane. You would need the budget and the resources of the Mossad and the CIA to do this. Oh wait… As opposed to putting a bomb inside a shoe box and sticking a stamp on it! If there were real terrorists they would obviously use the simplest solution which would be way more effective than going through 1 and 2 above. This is why all “terrorist” activities are actually false flag operations, i.e., inside jobs to make some people very rich and make the rest of us slaves and happy to give up our freedoms and our guns. See

    ICTS, Jew Chertoff, and the Christmas Day Underwear Bomber

  6. Challenge to Airport Body Scans Dismissed:

    “The scanners at airport checkpoints are a reasonable administrative search because the governmental interest in preventing terrorism outweighs the degree of intrusion on Corbett’s privacy and the scanners advance that public interest,” U.S. Circuit Judge William Pryor wrote for the majority.

    Given recent aviation terrorism plots involving nonmetallic explosives, Corbett’s suggestion that the agency has overstated the threat that terrorism poses to commercial airplanes “borders on the absurd,” the judge noted.

    Contrary to Corbett’s argument, airport scanners effectively reduce the risk of air terrorism. Furthermore, it is not up to the court to decide whether other techniques could better advance the government’s interest in dealing with a serious public threat such as terrorism, according to the ruling.

    Since the scanners now create only a generic outline of passengers, the invasion of privacy is diminished, the opinion states. As for pat downs, which are a backup screening method, they can occur in a private location, with a witness present, and are usually conducted by an officer of the same gender as the passenger.

    “The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett,” the opinion adds. “Airport screening is a permissible administrative search; security officers search all passengers, abuse is unlikely because of its public nature, and passengers elect to travel by air knowing that they must undergo a search. …

    The ‘jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane’ outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down.” (Citation omitted).

    The court agreed to seal sensitive security information and copyrighted materials the agency provided during the proceedings. Corbett must continue to comply with a non-disclosure agreement he signed earlier even though a third party made some of the sensitive information available to the public, according to the ruling.

    In a 4-page dissent, U.S. Circuit Judge Beverly Martin said Corbett’s pursuit of remedies in district court was not “quixotic” but “methodical and diligent,” and his petition should not have been dismissed as untimely.

  7. Salt Lake City Jail Scanners Will Eliminate Most Strip Searches:

    The SecurPASS scanners produce a detailed image of lungs, bones and body cavities — but not facial features or private parts. The image also shows narcotics, weapons, sharp objects and other contraband inside clothing or body cavities.

    Under legal standards, people being booked into jail cannot be subjected to a strip search unless there is a reasonable suspicion that they have contraband, Winder said. About 10 percent of the 120 people processed a day are strip searched.

    Now everyone being booked, as well as the several hundred inmates being taken to and from the jail each day to court hearings or other appointments, will be scanned, a process that takes eight seconds. Strip searches will be very rare and used only with pregnant women and people with pacemakers who need to be checked for contraband, Winder said.

    “Eight seconds will not add significant time at all to our processing,” the sheriff said, adding that the new process will be less intrusive to the inmates.

    The two machines cost just under $300,000 and were bought with money from the jail’s inmate services fund, which contains the profits from prisoner purchases at the commissary.

    Winder said his office has worked with state agencies to ensure the system meets all health regulations. One chest X-ray is the equivalent to 400 SecurPASS scans, and under federal regulations, an individual can have 4,000 of the scans in one year, according to Virtual Imaging Inc., the system’s manufacturer. The Florida-based company is a division of Canon U.S.A.

  8. Ohio Jail not using its SecurPass scanner

    A Hamilton County sheriff’s deputy was surprised when a body scanner showed an inmate had a screwdriver hidden inside him.

    The deputy knew it could easily become a weapon, threatening the safety of his fellow deputies and inmates.

    Thankfully the scanner caught it.

    But that SecurPass machine – which cost $243,000 – is no longer being used because the Ohio Department of Health’s rules don’t permit it.

    Sheriff Jim Neil called the rules antiquated; the state says it must approve it before it can be used because the machine uses radiation, which can be dangerous after repeated exposure.

    “This is a safety and security issue for our employees, for the inmates, for everyone,” Neil said. “I’m going to use every resource available to ensure we know what is coming into our jail.”

    He cited company data showing the equipment is not dangerous because it uses less radiation than an X-ray.

    Department of Health spokeswoman Tessie Pollock said the state agency is willing to look at updating rules, but it still must regulate any machine that uses radiation.

  9. Why the fight over body scanners should concern everyone!

    This is the disturbing future of police state Amerika: From TSA to jails & courts to you guessed it sporting venues, public transportation and finally retail stores.

    1. We have more POLICE agencies in this country than any nation has ever had! We have the CIA, FBI,TSA,Secret Service etc! What a police state!!!

  10. All of the people in the TSA are federal employees if I’m not mistaken. They are bound by the Constitution and the laws of the United States. Specifically Title 18 of the United State Code Sections 241, 242 and 245. Under Title 18 Sections 241, 242 and 245 the TSA officers who violate your rights under the law or the Constitution (right to privacy, right to travel, to be secure in your person and belongings etc.) are in violation of these laws and can be charged CRIMINALLY.
    These charges include FINES and IMPRISONMENT.

    Google “FBI Federal Statutes” and read how they can be held accountable. If everyone who travels knows their rights and criminally charges the TSA officer who violates their rights the government would have to get rid of the TSA.

    Also attorneys are officers of the court. They are bound by the court due to being licensed by the BAR Association. If they go against the will of the courts they run the risk of being dis-BAR-ed and can no longer practice law. When you hire an attorney you have placed yourself under his/her care and are considered by the court incompetent to defend yourself and are placed as a ward of the court. Which means that you have forfeited your rights.

    I hope that some of this info helps and wish you luck with your fight.

    If you don’t know what your rights are, then you have none.

  11. I was traveling in 2013 when I opted-in to the body scanner search. It was the newer fancy type that spins around and blows compressed air to detect explosive residue. I was wearing board shorts under my pants and had small amount of cash in my shorts’ pocket. I also had cash in my pants pocket and the money was detected. So I was made to empty my pants pocket. Sure enough on the second scan the TSA cleared me although I still had money in my pocket. The second scan wasn’t successful at finding what tipped them off the first time. I didn’t do this on purpose by the way. It was a coincidence I found disturbing. I simply opt-out of the scanner these days and go for the body patdown search.

  12. Hey, Jon, how can the “60-day” rule apply when the TSA did not lawfully deploy the scanners and still, in fact, hasn’t issued a final ruling as required by law?

    1. The court’s view is that the scanners were implemented as a result of a TSA order issued in 2010. Whether or not that order was lawfully issued (i.e., using notice-and-comment rulemaking), it still must be challenged in the Court of Appeals.

      Your point that, if it’s not a valid order, how can the rules regarding orders apply, is well taken, by me at least, but it’s not how the courts have viewed it.

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