Q&A on Lawsuit Against NYPD Scanners

Thanks again for your support — yesterday was awesome! 🙂 It feels so good to make a difference, and win or lose on the suit, the NYPD’s plans to scan people walking the sidewalks of the city are now front and center — before hundreds of these things were deployed. If we only would have hit the TSA hard when they were doing pilots of their scanners, I think we would have had a chance at stopping the whole thing, and I hope not to let that opportunity go to waste here.

I’m seeing some recurring questions and misconceptions in the comments here and on the news sites (NY Daily News, NY Post, Village Voice, Gothamist), so I wanted to comment more prominently on the following:

Q. These scanners don’t produce embarassing images like the TSA scanners… what’s the big deal?
A. The big deal about the NYPD scanners is not that they’re conducting an intrusive, invasive, or embarassing search. The big deal is that they’re conducting a search at all. The police may not search the people without individualized suspicion. They’re not even allowed to demand ID without reasonable suspicion. To allow them to search our bodies in any way is entirely novel to this great nation.

Q. If the scanners were more accurate / less prone to error / more specific, would you still be opposed?
A. Yes! NO SEARCH is allowed without reasonable suspicion. Even that is a stretch from the intent of the framers of the Constitution, who specifically called for probable cause (a much higher standard), but the Supreme Court has allowed police a limited exception for weapons checks at the lower standard of reasonable suspicion.

Q. Then how do you expect the police to get illegal guns off the streets?
A. These scanners actually bring New York’s gun laws front and center. In any other state, save for perhaps IL and DC, having a gun doesn’t presume you to be a criminal. In NY, it is so impossible to get a gun license that the police expect that they can scan the general public and anyone with a gun is almost certainly a criminal. People walking around with guns should not be presumed to be criminals in America, and the NYPD’s attempt to make it so is appalling. Chicago and DC’s handgun laws have been firmly slapped down over the past few years, and I expect NY will feel the same quite soon. For example, it is currently an impossibility for me to legally carry a gun in NY — the state does not accept out-of-state pistol permit applicants and honors no other state’s licenses. How is it that the second amendment guarantees our right to bear arms (as confirmed by the Supreme Court) yet I can’t legally do so in NY? Regardless, NY can do what every other state does: if you have reason to think someone has an illegal gun, get a search warrant.

Q. Why didn’t you bring up the radiation issue? These things are dangerous!
As best my research has led me at this point, I do not believe that NYPD scanners emit any radiation — they appear to be “passive” scanners, which means they are basically just digital cameras that capture a different type of light and run analysis on that light. They don’t put out their own light. If it comes out that these scanners do emit their own terahertz waves, we can look at the issue from there.

January 29, 2013 7

Lawsuit Filed Against NYPD Street Body Scanners

When the TSA brought nude body scanners to the airports, demanding that the citizens allow the government to photograph them naked in order to get on a plane, there were some who said, “If you don’t like it, don’t fly!” That we should give up some of our liberty in order to “keep us safe,” because airports are where all the terrorists are.

When the TSA started paying visits to Amtrak and Greyhound stations, there were some who still didn’t see the problem. After all, “I’ve got nothing to hide!”

Now the NYPD has asked us to accept body scanners on the streets, allowing them to peer under your clothes for “anything dangerous” — guns, bombs, the Constitution — from up to 25 yards away for, you know, our safety. (And someone please think of the children!)

I’m pleased to have filed the first lawsuit against the nude body scanners after the TSA deployed them as primary screening in 2010, and I’m pleased to announce that today I filed suit against New York City for its testing and planned (or current?) deployment of terahertz imaging devices to be used on the general public from NYPD vans parked on the streets — a “virtual stop-and-frisk.” My civil complaint, Corbett v. City of New York, 13-CV-602, comes attached with a motion for a preliminary injunction that would prohibit use of the device on random people on their way to school, work, the theater, or the bar.

It is unfortunate that it seems that government at all levels is always in need of a fresh reminder that the citizens for whom it exists demand privacy, and that each technological advance is not a new tool to violate our privacy. However, as often as proves to be necessary, we will give them that reminder.

Corbett v. City of New York II – Complaint with Exhibits
Corbett v. City of New York II – Motion for Preliminary Injunction

January 28, 2013 42

NYPD to Implement Long-Range Body Scanners on Streets to Look for Guns — Shall I Sue?

http://www.dailymail.co.uk/news/article-2267217/Forget-pat-downs-NYPD-testing-handheld-X-ray-device-detect-concealed-weapons.html

The TSA argues that its nude body scanners are necessary because of the specific risk of air terrorism. But random police checkpoints have never been allowed to force random searches, and case law on thermal imaging, which is a lot less detailed than terahertz imaging, is clear that it requires a warrant. Beyond that, having a gun in an airport is illegal, but having a gun on the street is constitutionally-protected, so the entire premise of the search is flawed.

I just happen to be about 1 mile from the federal courthouse in Manhattan. What do you guys think — will you be here to support me if I take this one on?

January 24, 2013 9

Press Release: TSA to Remove All Rapiscan Nude Body Scanners

January 18th, 2013 (Miami Beach, Fla.) – As a result of the public outcry regarding the invasiveness of the TSA’s nude body scanner program, Congress has required the TSA to remove all scanners that produce an image of a traveler’s unclothed body for inspection by a TSA screener. The TSA today has indicated that it will comply by June of this year, resulting in the removal of all Rapiscan x-ray devices from airports across the country.

The Rapiscan x-ray scanners represented perhaps the TSA’s most egregious violation of the public, as in addition to the creation of a detailed image of the intimate areas of the body, it doses the traveler with ionizing radiation, a known carcinogen. It was estimated that these devices may kill several travelers per year by damaging the DNA of body tissues and turning healthy cells into cancerous cells.

Our fight against TSA abuse is unfortunately not over. The remaining nude body scanners, built by L-3 Communications (the same company that tortured the prisoners of Abu Ghraib), still require Americans to submit to an inspection of every inch of their body, completed by a computer rather than a person. While the TSA’s Congressional mandate and constitutional boundaries require it to search solely for items that can be used to terrorize air travelers, it is clear that the L-3 nude body scanners far exceed the scope necessary to find weapons, and instead are used to further the government’s failed war on drugs at the expense of our liberties. It has also been made abundantly clear that anyone in possession of entry-level sewing skills could easily defeat this technology, leaving our skies at risk. Furthermore, the continual false-positives — estimated to be at a rate between 30% and 70%– result in “pat-downs” that have infamously left children in tears, parents in jail for daring to object, the elderly humiliated, and everyone in between wondering how we got to the point where the government quite literally has its hands in our pants.

Removal of the Rapiscan devices is a step in the right direction, and we look forward to the eventual removal of all body scanners and the elimination of the “pat-down” program that places government hands on the genitals of our families.

January 18, 2013 15

The TSA Likes It Both Ways

If you’ve been following for a while, you know that my first filing for court review of the TSA’s nude body scanner and genital molestation program was booted for being filed “in the wrong court” (if by “wrong” they mean “in the court that would give me the best opportunity to challenge the TSA’s unconstitutional behavior”). In order to convince the courts to dismiss my case and the several others like it, it had to assure the courts that the other court — the US Court of Appeals — actually would have jurisdiction. This was a problem, since filing in that court has a statutory time limit of 60 days absent “reasonable grounds” for delay.

So, when another plaintiff, who filed virtually the exact same complaint as I did (in large part word-for-word ;)) pointed this out to the judge in their case, the government argued that the “reasonable grounds” clause would clearly cover such a case, and the court need not worry about it:

assholery1

Months later, here we are in that Court of Appeals that the TSA insisted on. And, of course, now the TSA argues that reasonable grounds don’t actually apply:

assholery2

Just another fine example of the Department of Justice’s “Win At All Costs, Fuck Justice” attitude. Luckily, courts are not keen on hypocrites and arguing one thing in front of one court and the opposite in another is barred by the doctrine of judicial estoppel. …in theory, at least. Ruling in favor of the TSA here would mean that “scope & grope” would never be able to be reviewed by any court, ever, which is equivalent to placing the Constitution in the fireplace. Let’s see how the court handles this one!

January 17, 2013 8

The Department of Justice “Win-At-All-Costs, Fuck Justice” Attitude Claims Life of Internet Genius

Those who read my blog are familiar with the fact that the Department of Justice will say and do anything, no matter how absurd, contradictory, or blatantly unconstitutional, to prevent the TSA from having to face justice for its actions. But, if the government ulitmately wins in its quest to do what it wants, justice be damned, then my life goes on (assuming I’m not decalred a terrorist and sent to Guantanamo, Assanged, etc). I’m the challenger, and if I lose, there’s really no penalty other than the many hundreds of hours of time, money, and sanity I’ve spent.

Others have more to lose with their fights. Aaron Sandusky, for example, operated a California medical marijuana dispensary, and despite Obama’s lip service about how no priority will be given to prosecuting dispensaries operating under the laws of the ever-increasing number of states that have realized that marijuana is a safer and more effective treatment for many conditions than the actually dangerous and addictive chemicals sold to us in a pharmacy, he was sentenced to 10 years in prison.

This is nothing compared to another man named Aaron. Reddit co-founder, free information advocate, and general Internet genius Aaron Swartz was found dead last night of an apparent suicide. Aaron had been targeted by the Department of Justice since 2008, when he made 20% of the public records of the federal court system available for free, because the federal court system feels it’s entitled to charge the public to access those records. Last year, he was charged with a similar caper: stealing “academic articles” from a university with the intent of giving them away. The government had charged him with felonies that could have had him in prison for 50 years for, as one journalist called it, “checking out too many library books at the same time.”

For the DoJ, it doesn’t matter what’s right or what’s wrong — legally, morally, or otherwise. What matters is that you obey. “Making an example out of someone” is not justice, especially when the alleged crime is dubious of legal and moral merit, as in Aaron’s case, and especially when you decline to prosecute those who actually steal millions of dollars — such as the bankers who brought you the economic crash of a just a few years past. As a result, a brilliant young man is now dead.

The government who asks school children to stop bullying should lead by example and clean out its own halls.

January 12, 2013 7

The Constitution is Neither Dated nor Advisory

The New York Times was one of the few newspapers in the world that couldn’t find the space to write a story about my TSA work. Not the defeat the body scanner video, not the multiple lawsuits and petition to the U.S. Supreme Court, none of it. They did, however, find space to publish an op-ed by a Georgetown University law professor who dedicated a piece to trashing the Constitution and calling for it to be, essentially, considered a piece of advice rather than binding law: Let’s Give Up on the Constitution, by Louis Michael Seidman.

I don’t understand how a constitutional law professor, or attorney of any kind, can make such claims. Lawyers take an oath to defend the Constitution, and having a man who hates the Constitution teach the future lawyers of the country about that document is absurd, and I believe the exact reason why we find judges that are so willing to bend the constitution to their will.

I wrote the following reply op-ed to the NYT, which I’m sure they’ll publish ASAP.

In Georgetown University constitutional law professor Louis Michael Seidman’s op-ed published by the Times on December 30th, a man who is teaching the attorneys, judges, and politicians of the future preaches that our founding document is too “ancient” to be relevant to today’s issues, and we should ignore its “evil provisions.” He argues that we can instead keep our cherished rights through checks and balances between the branches of government, “tolerant debate,” and “engaged citizens.”

I’ve spent the last 2 years working to hold our government to the promises of the Constitution in my battle against abuse by the Transportation Security Administration. I am thankful that I have the Constitution behind me when I step into court. Arguments advanced by the government so far in my litigation have included requests to deny me a trial altogether, requests to consider only government-produced evidence, and a request that constitutional claims relating to TSA policies be filed within 60 days or be forever forefeited. The Constitution gives me the legal backing to demand to be heard and meaningfully petition my government for redress. Neither public debate nor checks-and-balances has yet stopped the TSA from using machines to photograph us naked at the airport, nor from putting their hands on the genitals of both our grandparents and grandchildren. There are many “engaged citizens” left in tears after prison-style airport searches of themselves and their familes wondering exactly how they can direct their anger towards the pursuit of change. Many conclude that there’s not much that can be done.

If the Constitution did not exist, or somehow becomes advisory rather than compulsory as Mr. Seidman fantasizes, short of armed revolution, they would be right. Checks and balances between branches of government are useful, but the ultimate check is against the will of the people, and the foundation of that is the document that spells out what we the people have empowered and forbidden our government to do. It is a crystal clear history lesson that every government that ever was has relentlessly sought to gain as much power as it possibly can. There is no doubt that over 200 years later, a black-and-white notice of the people’s demand for freedom of speech, fair elections, due process, protection from unreasonable search, and (dare I say it) the right to be armed (and not just for hunting, but for defense against criminals and tyranny alike) is still relevant and necessary. With the help of this “ancient text,” we can avoid a situation in which the people are left with no recourse but to fight their government as those in Lybia were forced to do after their government shut down the “tolerant debate” of the engaged citizens.

The problem of “infidelity” to the Constitution described by Mr. Seidman comes from judges, politicians, and government lawyers who decide that their judgment is superior to the document that founded the greatest nation on this earth. Where could they possibly have imparted the idea that such an arrogant disregard of the will of the people was acceptable? Perhaps they studied law at Georgetown University.

January 2, 2013 9

I Made It Into The TSA Dictionary!

A “rogue TSA screener” put up a new blog called Taking Sense Away (TSA ;)) that goes through much of the absurdity at the TSA, and includes a lot of feedback from other screeners and passengers. One post on his blog is The Insider’s TSA Dictionary, a guide to the unofficial lexicon of the TSA. One of his entries:

Corbetted (to Corbett): A term connoting a David like figure single-handedly exposing ridiculous vulnerabilities of a Goliath-like billion dollar technology. Ex: “The TSA announced they were going to start random house screenings after the house bomber plot last month. But some guy proved that all you had to do to foil the screening is close your curtains. Totally Corbetted their ass.”

Love it! 🙂

Hat tip: Ava Wilde

December 22, 2012 7

TSA to Court: Actually Don’t Bother with Facts, Just Grant Us Permanent Immunity

In Monday’s post about the TSA asking the court to hear only its own version of the facts, the TSA had reached a new low. It appears they’ve continued to dig. Yesterday’s filing asks the court not to hear my challenge — or anyone’s challenge — regarding the nude body scanners and “pat-downs” — ever!

The basis of this request is that there is a law that says challenges to TSA orders have to be made within 60 days unless “reasonable grounds” are shown. So even though my original challenge *was* filed within 60 days (November 16th, 2010!), because I was forced to re-file in a different court (clearly not a “reasonable ground,” right?), the TSA would like the clock reset and the case thrown out. Naturally, this would mean that no one can challenge the order at this time or at any time in the future, in any court, ever.

In light of the fact that a constitutional injury continues every day that the order remains in place, this is blatantly unconstitutional. And stupid. The requests from the TSA continue to get crazier and crazier, perhaps because judges keep granting them. I seriously hope they’ve crossed a line that even a federal judge can see.

Corbett v. DHS – Jurisdictional Q Govt Reply (.pdf)

December 21, 2012 7

Texas State Trooper Fingers Two Women on Side of Highway, “Might Be Marijuana In There”

A Texas state trooper pulls over two women for littering a cigarette butt out the window. He decides that he “smells marijuana” and orders the two women out of the car. A female trooper is called in to search the women, who proceeds to insert her fingers into the women on the side of the highway — from both front and back — and without changing gloves. All of this is caught by the dash cam. No drugs are found. Source and video: http://www.rawstory.com/rs/2012/12/19/two-women-sue-texas-troopers-for-illegal-roadside-cavity-search/

This is the #1 reason to end the war on drugs: it is a constant excuse to violate the rights of the people.

If you’d like to tell the trooper what you think of her work, I’m pretty sure this is her Facebook. Same name, looks vaguely like the woman in the video, and friends with a bunch of cops. You can also send your thoughts as to whether or not she should be charged to the Texas Dept. of Public Safety at cle@dps.texas.gov.

Please share.

December 20, 2012 18

Author: Jonathan Corbett