Briefed: Can the TSA Eliminate the Pat-Down “Opt-Out?”

petSince the nude body scanners were introduced by the TSA as primary screening in Fall 2010, they have always maintained that use of the technology is optional: that if you wanted, they would instead simply molest you using their new “pat-down” rather than use radiation to image your nude body.  Not exactly a pretty choice, but it was some choice nevertheless.

Five years later, after all the dust had settled over the lawsuits by passengers who felt that the TSA’s new screening techniques were unconstitutionally invasive (and down-right stupid considering that despite being the most intrusive search they had ever implemented, they were blatantly ineffective), the TSA doubled-down on their scanners and announced to passengers that they reserve the right not to honor “opt-out” requests in the future.  This new announcement flew in the face of the 94% of the public who formally told the TSA to ditch the scanners, and me being one of that 94%, I immediately filed suit in the U.S. Court of Appeals for the 11th Circuit.  Two other lawsuits were filed by EPIC and CEI, alleging that the TSA improperly disregarded that 94%.

It’s amazing how long these things take to progress.  It’s 7 months into the lawsuit and I just filed my principal argument, the appellant’s brief — a written statement of the entire case.  Those 7 months were filled largely with the TSA bickering about how much information they had to release to me, which resulted in the end with several thousand pages landing on my doorstep.  I’ll be posting those pages, known as the “administrative record,” shortly (scanning thousands of pages is an effort!), along with a few highlights (including, “How Any Terrorist Can Get Pre-Check,” an exposé on why the Pre-Check system is bullshit), but what was most interesting about them is they showed zero basis for their decision to eliminate the opt-out.  As I explain in my brief:

The Administrative Record is illuminative on the reasons for adopting the body scanner and pat-down program as primary screening in 2010 [Ed – Not that they were good reasons, but they were reasons.]. There are many documents that address the effectiveness of the body scanners and provide some evidence of cost/benefit thought process and procedures by which the program is tested. See, e.g., Admin. Rec., Vol. 4, p. 3893 (results of body scanner field testing). However, the elephant in the room is that there is no discussion on the effectiveness of the pat-down component of the program, nor a comparison between how likely a body scanner is to find a dangerous item on a passenger as compared to a pat-down.

Full brief below…

Corbett v. TSA IV – Appellant’s Brief (.pdf)

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18 thoughts on “Briefed: Can the TSA Eliminate the Pat-Down “Opt-Out?”

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  1. Has anyone done any study into how the milliwave (microwave’s little brother) affects people with metal implants? I’m pretty sure I got burned by that machine because of my metal hip. I was in agony for 4 days.

  2. The Rutherford Institute’s Brief of TSA’s airport screening protocols.

    The Rutherford Institute’s calls screening protocols ineffective, invasive, unlawful and unhealthy, They’ve asked a federal court to strike down the agency’s use of whole body scanners, which have been likened to virtual strip searches.

    Click to access 09-28-2016_TSA-Lawsuit_brief.pdf

  3. The Disturbing Secret Methods The FBI Uses To Recruit Informants at the Border:

    The systematic targeting of travelers for the FBI’s intelligence purposes helps explain widespread reports of Muslim travelers, both immigrants and U.S. citizens, experiencing invasive questioning and searches at airports and border crossings. The FBI has also reportedly threatened individuals with deportation or delayed their visa applications indefinitely as agents try to convince them to cooperate. Others have alleged they were placed on the no-fly list after they refused to talk to the FBI.

    The targeting is also an example of how the FBI has enlisted other agencies in its post-9/11 transformation into a hybrid intelligence and law enforcement agency where counterterrorism is the top priority. The bureau’s use of informants ballooned after 9/11, reaching more than 15,000 within about six years — and that only includes people officially opened on the FBI’s books as confidential human sources.

    Read More:

  4. U.N. Joins Critique of Proposed Border Patrol Social Media Questions:

    An important new voice joined the debate at the end of September, when David Kaye, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, wrote to remind our government that international law protects everyone’s “right to maintain an opinion without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers,” in addition to “the right of individuals to be protected…against arbitrary…interference with their privacy and correspondence.”

    Mr. Kaye’s letter also reiterates the necessary and proportionate principles developed in 2013 by a global coalition of civil society, privacy, and technology experts (including EFF) and endorsed by over 600 organizations and a quarter million individuals around the world. It goes on to challenge CBP’s proposal for half a dozen reasons, including the vagueness that has concerned EFF. In particular, Mr. Kaye notes that:

    It is unstated whether (and under what circumstances) officers may request additional information or access to private accounts. It is also unclear whether officers can request or persuade travelers who have left the data field blank to provide information, or whether they would be questioned about why they left the field blank.


  5. Muslim Americans Experience Greater Scrutiny than Other Travelers at U.S. Airports:

    Passing through airport screening can be time-consuming for any business traveler. But Nafees Syed, a lawyer and writer in New York, has additional obstacles.

    “I have to go an extra hour earlier than anybody else, because it’s not random checking,” Ms. Syed said.


  6. Border Patrol Allowed To Scan Your Phone’s Text Messages Without A Warrant!

    Scanning text messages on a cell phone at the border was reasonable. This wasn’t a full search, and this was just a “non-forensic scan” of the phone and not a “searching inquiry.” This led, however, to a search warrant which was not overbroad merely by including a “tending to show” phrase. Finally, a search protocol was not required.

  7. Concern about data security derails plan to expand PreCheck:

    the TSA noted concerns about the ability to ensure that vendors safeguard sensitive testing data. The request for proposal (RFP) had called for vendors to present solutions that would allow them to successfully pre-screen large populations of applicants for such issues as a citizenship and criminal backgrounds.

    “While risk mitigations were included in the current RFP testing approach to protect the sensitive data during testing, the TSA has determined it will no longer accept the risk associated with sharing test data,” the agency said.

  8. TSA proposes to require ID to fly:

    In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.


  9. 70+ flights this year – 30+ times through O’Hare in Chicago and the percentage of aggressive patdowns by being “randoomly selected” is crazy! Sunday TSA Agent CROSSED THE LINE! Here is my filed complaint.

    TSA Complaint December 11, 2016
    When traveling through TSA precheck I was selected for random additional screening. In fact, all 4 women out of the six through were all randomly selected but that is a different issue. I will not go through the body scanner since I travel almost every week and believe it is dangerous on a regular basis. I have been patted down over a dozen times in 2016 but this past experience was hands down a violation of my rights and my body. I was sexually molested by your agent. After waiting a longer than professional time to finally come bring me back for the patdown I was already upset. The TSA employee Moody was aggressive, rude and unprofessional. She had several of her colleagues watch to further humiliate me.

    She felt my breasts twice. I was not wearing a bra and she pushed hard forcing me to go backward. She said “You moved now I get to do it again”. She felt my legs up and down forcefully hitting my crotch and private parts. After the second time, I said that was not appropriate. After the third, I got angry and in her face. After the FOURTH we were done. I asked for the supervisor. The police were called but I was not able to file a complaint. Something I intend to do next. The supervisor watched the video and told me to leave. I have Global Entry, TSA Precheck and high status on the Airlines. I travel almost every week and should not be subjected to a patdown 30% of the time.

    Giving someone a TSA badge does not entitle them to forcefully touch peoples private parts. I wish to know what the TSA will do to fix this. When does it end and the folks who have to travel for a living can avoid the stress related to being sexually abused to do their job! Maybe President-Elect Trump can do something about how horrible this process is.

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