This blog began in 2010 to document my lawsuit against the beginning of the TSA’s body scanner program. From that time until 2015, the body scanner was “optional” for all passengers — so long as you didn’t mind being molested by a blue-gloved screener during their “full-body pat-downs.” This was part of the reason that no court has struck down these body scanners as unconstitutional: because, they say, passengers are consenting to use them (even though that “consent” is coerced by offering the alternatives of “let us touch your junk” or “don’t fly”). But, at the end of 2015, the TSA announced that they would reserve the right to refuse to allow these body scanner “opt-outs” at their discretion, and I immediately filed suit.
There are two really interesting issues in this case that I hope may cause a wrinkle for the TSA:
- The original body scanner rule in 2010 was issued without “notice-and-comment rulemaking,” a procedure required by Congress whereby agencies that make rules first have to ask the public for input. The U.S. Court of Appeals for the D.C. circuit ruled that the TSA violated this procedure and, although normally that would require them to stop enforcing the rule (i.e., stop using the body scanners), the Court, fearful that the body scanners actually protect us, simply ordered the TSA to take comment after the fact. The new body scanner rule limiting opt-outs was also issued without public comment, and I’ve asked the court to, this time, put some teeth into forcing the TSA to actually follow procedure before issuing a rule.
- The TSA is arguing that it needs to be able to force some passengers through the body scanner because, they allege, it is more secure than a full-body pat-down. But, this is objectively untrue. Besides the fact that I proved the scanners to be beatable in 2012, think about this: if one alerts a body scanner, the result is… a pat-down of the area of the body that generated the alert! How could this possibly be more secure than a full-body pat-down that would have touched that area of the body and more? The function of the body scanners is to narrow down those people who do not need to be patted down to save time, not to make a pat-down more secure. Body scanners don’t find weapons — pat-downs do.
This case lives in the U.S. Court of Appeals for the Eleventh Circuit, and the procedure for cases there is a written brief filed by the person filing the case, an opposing brief filed by the other side, and then a reply brief again by the filer, after which the court may rule on the case. Yesterday I submitted my reply brief after nearly a year and a half of delay, and so, the case is now “fully briefed,” meaning the judges can decide it at any point (or can ask for the parties to argue in-person, or can ask for more evidence, or, basically, whatever they want). Realistically, I expect it more likely that they will decide without in-person arguments, probably towards the end of the summer. I’m not holding my breath — the game is rigged, and the TSA gets almost complete control over what evidence the court sees, some of which I don’t even get to see (wouldn’t want the public to see things like how often their testing shows the body scanners miss a weapon, because that would be, well, embarrassing).
Corbett v. TSA IV – Reply Brief (.pdf)
Corbett v. TSA IV – Appellee Brief (Redacted) (.pdf)
Corbett v. TSA IV – Opening Brief (article)
You’re my hero dude
I look forward to the outcome. I’d really like to be able to fly again ( I can’t go thru the scanner for medical reasons , and refuse to be molested as a condition to use a plane ticket).
No other company requires its customers to submit to molestation in order use its product. If they did, they would be both out of business, and facing the wrath of the government. 🙄
Well actually, there’s at least one other…
TSA and CBP employees use their own judgment to decide who’s a criminal or terrorist:
According to a DHS 2015 Data Mining report to Congress, DHS claims the ‘Homeland Security Act’ authorizes them to give Americans secret risk assessments.
Transportation Security Administration (TSA) and U.S.Customs Border Protection (CBP) employees use their own judgment to decide who’s a criminal or terrorist.
“While each program described below engages to some extent in data mining, no decisions about individuals are made based solely on data mining results. In all cases, DHS employees analyze the results of data mining, and then apply their own judgment and expertise to bear in making determinations about individuals initially identified through data mining activities.”
This is ludicrous, how do you let the Feds decide who’s a terrorist or criminal based on their feelings?
Stripping Down at an Airport Is Not Constitutionally Protected Speech:
In a far from surprising ruling, the Ninth Circuit Appeals Court on Tuesday refused to review a man’s complaint that stripping naked at a TSA checkpoint at Portland International Airport and refusing to put his clothes back on was constitutionally protected speech.
John Brenna sued the Department of Homeland Security and its Transportation Security Administration after TSA officers told him he needed to undergo additional screening because he tested positive for explosives.
So “Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times,” the three-judge panel wrote in its unpublished ruling.
“After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties.”
Naked TSA Checkpoint Guy loses First Amendment challenge to $500 fine
The TSA revealed that at least two other air travelers have been fined in recent years for taking off all their clothes:
The judges on the 9th Circuit panel claimed not to believe that viewers would understand Mr. Brennan’s symbolic speech — notwithstanding the public reaction that made clear that Mr. Brennan’s expressive intent and message were perfectly clear to those who heard about what he had done. According to thre court’s “unbpublished” (it;s actually public, but can’t be cited as precednt in future cases) opinion:
Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. Therefore, his conduct is not protected by the First Amendment.
Irony: Muslim NYPD Cop Detained for Four Hours at JFK Airport:
Court Orders Government To Provide More Information About Withheld Information in Laura Poitras’ FOIA Lawsuit:
Laura Poitras—the Academy and Pulitzer Prize Award-winning documentary filmmaker and journalist behind CITIZENFOUR and Risk—wants to know why she was stopped and detained at the U.S. border every time she entered the country between July 2006 and June 2012. EFF is representing Poitras in a Freedom of Information Act (FOIA) lawsuit aimed at answering this question. Since we filed the complaint in July 2015, the government has turned over hundreds of pages of highly redacted records, but it has failed to provide us with the particular justification for each withholding—as it is required to do. In March, in a win for transparency, a federal judge called foul and ordered the government to explain with particularity its rationale for withholding each document.
Any movement on this case?
I’ve followed your case off-and-on over the years. I wasn’t sure if you were aware that the scanners are used at the Capitol. I’ve lost a link to a news item about it, but here’s my firsthand experience: