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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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TSA

TSA: We May Force You to Go Through Body Scanners Because… Well… We Can’t Tell You

tsagropeAt the end of 2015, the TSA snuck in a pre-holiday amendment to their body scanner opt-out policy: that passengers may “generally” opt for a pat-down instead of the body scanner, but the TSA reserves the right to require the body scanner.  I immediately filed suit, asking the U.S. Court of Appeals to reverse this arbitrary change made in the face of 94.0% public opposition to the body scanners and the fact that I made readily apparent in 2012: that the body scanners simply don’t work.

A year later, we finally have the government’s position on the matter.  First, I’m reminded that I’m complaining for no reason:

“AIT screening presents no greater intrusion upon passenger privacy than the walk-through metal detectors previously deployed at airport checkpoints”

…which is why 94% oppose them.

Next, I’m told that I shouldn’t concern myself with the matter, because only “selectees” will lose their right to opt-out:

“[T]he challenged AIT screening policy applies only to individuals who have been issued a boarding pass with an “SSSS” notation indicating that they have been selected for enhanced screening.  This notation generally means that the passenger in question is a ‘selectee.’  Selectees are individuals who are ‘[k]nown or suspected [t]errorists’ or who have been ‘identified as [posing a] higher risk’ to airline security ‘based on intelligence [redacted].’  Additionally, as of July 2016, TSA has instituted a policy under which [redacted] airline passengers are randomly designated as selectees for the purpose of a particular trip.”

…but that last sentence is, of course, the problem and, frankly, is what we all already know: that you can be Mother Theresa and still end up with a blue glove between your legs because because the TSA has randomly made you a “selectee.”

But, let’s ignore that for a moment.  There’s a more pressing question: Why does the TSA feel that someone with a higher “risk” level (whether because they are a suspected terrorist, or were randomly selected to be treated like one) should be screened by body scanner rather than a pat-down?

“[Redacted].  Covert tests also suggested selectees could [redacted] opting out of AIT screening in favor of a pat-down.”

Ah, that clears it up.  The TSA, allegedly, found some scenario where it’s easier to beat the pat-down than the body scanners, but doesn’t want to tell us what that is.  But, what about the very real scenarios where the body scanners are easier to beat than the pat-down?  That, of course, isn’t discussed at all.  Once again, the TSA blindly chooses these high-tech, high-price, highly-invasive gadgets when very effective alternatives exist.

The case continues as I get an opportunity to file a reply brief.  I’ll also be asking the court to appoint counsel with a security clearance to review the redacted brief and represent my interests, because hiding the rationale for a policy that is being challenged for arbitrariness from the person challenging it doesn’t exactly lend itself to a fair day in court.

Corbett v. TSA – Appellee Brief (Redacted) (.pdf)

 

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)


Civil rights advocacy is expensive!  Want to contribute to the fight against police abuse, TSA assholery, and other civil rights issues? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Detained, Removed From Airplane By Feds @ LAX

In the history of my advocacy, I’ve been kicked out of airports three times (for refusing to allow the TSA to “touch my junk”).  I’ve had airport police called at least a couple times. But having the feds come down the jetway just for me?  That was a new experience I had last Wednesday at Los Angeles International Airport.

Grumpy Cat with SSI
An artist’s rendition of the TSM upon finding my documents

I went through the security line as usual, opting out of the nude body scanners, but one of my bags was flagged for extra screening.  Upon opening it, they were shocked to find… TSA documents, bound into several books, labeled “Sensitive Security Information” (“SSI”).  “These are our documents,” a sassy Supervisory Transportation Security Officer exclaimed at me before fetching the highest-ranking traveler molester TSA staff member at the checkpoint, a suited Transportation Security Manager (“TSM”) who wanted to know how I got those documents and why I had them.

As you guys probably guessed, I have them because the government sent them to me during litigation, and I was traveling with them because I have a brief due based on those documents in Corbett v. Transportation Security Administration, 15-15717 (“Can the TSA make the body scanners mandatory?”) next week.  They contained mundane details of how the TSA came to the decision to implement the body scanners and then to make them mandatory under certain circumstances, rather than any kind of epic secrets ISIS would moisten themselves over.  But I’ll be damned if I have to explain my reading material to the TSA, so I told them they were documents lawfully in my possession and I didn’t feel compelled to share anything further.

The bag check and the pat-down were soon completed, finding nothing other than my “concerning” documents, but I was instructed to “wait” and not to touch my bags, as airport police were on their way because they needed “someone else to make the decision.”  “How are airport police supposed to determine whether it’s a problem if I have ‘your’ documents,” I asked Mr. TSM.  He shrugged, and then airport police arrived and asked him exactly the same question, then wandered over to the side to let the TSA handle it.  Kudos to Airport Police for not buying into their bullshit as they sometimes do in other airports.

Unsatisfied, the TSM calls the Federal Security Director’s office.  The FSD is basically a “regional director,” typically overseeing several airports in a geographic area.  The FSD’s office sent an assistant to come to the checkpoint while they found someone who could actually clear me.  The assistant was friendly enough, and we spoke a little.  After about 45 minutes had passed and it was approaching final call for my flight, I said to her, “It’s really a shame that the TSA is going to detain me for this long and cause me to miss my flight over the contents of paper when they’ve already determined that I have no hazardous items,” to which she replied, “Oh, you’re not being detained.  We don’t detain people!”

Well that’s funny, since I was told to “wait” and not to touch my bags.  The current standard for whether or not one is being detained was first contemplated in Terry v. Ohio, 392 U.S. 1 (1968) as “whether a reasonable person would feel like they were not free to leave.”  I must disagree with the assistant, as it seemed clear to me that I was not free to leave until someone other than the TSM (such as the assistant) made the call, but I packed my bags, walked to my gate, and boarded my plane.

Of course, the story does not end there.  After boarding, putting my stuff in the overhead, and taking my seat, an airline employee comes on board and says, “Mr. Corbett, the TSA would like to speak with you off the plane, can you show me where your bags are?”  Ugh.  I do so, and meeting me on the jetway was a smiley man (along with the original TSM) who showed me his ID: “TSA Inspector.”  TSA Inspectors are the only TSA employees that are law enforcement officers.  His position is, essentially, equivalent to an FBI Special Agent, although I’m sure far less trained given the lower pay grade associated with the job.  He seemed to understand that the documents were for litigation and pressed me for a few minutes to explain my business, which I politely declined.  After copying down the information from my ID, he miraculously allowed me to return to the plane, to face the looks of the flight attendants (who, to their credit, largely seemed understanding that the TSA is absurd) and passengers.

So there you have it… how you can be harassed and treated like a terrorist for possessing “suspicious” paper.  The best part?  The documents I had didn’t actually contain any SSI — they were redacted copies for public distribution.  I’m tempted to print books with an SSI cover sheet and the U.S. Constitution underneath it.  Or, maybe just 100 copies of the 4th Amendment underneath the cover sheet, and I can tear one out and give it to them each time they think it’s acceptable to detain people without probable cause (let me know if you’d like one to travel with, perhaps I’ll print a few dozen and mail them out if there’s interest!).


Civil rights advocacy is expensive!  Want to contribute to the fight against police abuse, TSA assholery, and other civil rights issues? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Court Refuses to Hear International Security Interviews Lawsuit; TSA Ramps Up Domestic Version

Last month, the 11th Circuit Court of Appeals abruptly terminated my case against the TSA’s international security interview program, wherein the TSA forces US-flagged airlines to interview their passengers before they return to the U.S.  Their reason?  I asked for an injunction (forcing them to stop or modify the program), and the court ruled that I can’t prove that I will be subject to it again, and therefore I lack standing.  The rationale for this interpretation of standing comes from a case over 30 years ago where the U.S. Supreme Court that ruled that a black man who was choked out by the L.A.P.D., nearly to death, during a traffic stop still could not seek an injunction against the chokehold policy, despite proving that the L.A.P.D. had a widespread practice of chokeholds, that they were regularly deadly, and and that he was a victim of the policy.   Los Angeles v. Lyons, 461 U.S. 95 (1983).

Lyons was a bad ruling, and I’m not certain the court would make the same decision today given its trend against rubber stamping blatant racial discrimination, but importantly, it ruled that while Mr. Lyons could not sue for an injunction, he could indeed sue for money, so I’ll get to renew my case as a request for money damages.  If I win even a trivial amount, the TSA would have to stop the program, because then thousands of passengers daily could sue for that trivial amount.  Even $100 would do, given that about 2 million passengers would be able to sue every moth by my calculations.  So, I shall proceed in that direction.

In the meantime, as I noted before, the case is already won, because it forced the TSA to: 1) publicly disclose the existence of the program, which had been previously described nowhere on the public Internet, and 2) state in open court that it wouldn’t force travelers to participate in the program with a threat of denied boarding, which is what I encountered.  I continue the lawsuit because the TSA needs to direct the airlines to stop the practice of threatening denied boarding, which it has thus far refused (at least publicly) to do.

With that said, I received an e-mail from a woman this weekend who said she was questioned at a gate for a domestic flight:

In Tulsa yesterday, three [uniformed TSA screeners] fanned out among people waiting AT THE GATES and began interrogations.  They asked EVERYONE up and down my concourse, “Are these your bags?  (Yes) Do you have any others? (No) Did you check any?  (No)  Where are you going? (Charlotte) After Chicago, where are you going?  (I’m not going to Chicago, I’m going to Charlotte.) Okay after Charlotte, where are you going?  (Portland)  Portland Oregon or Portland Maine?  (Y’all are scaring me.  Is something going on here?  What’s up?)  We have to talk to everybody.  Portland Oregon or Portland Maine?  (Maine)

[It was American Airlines, the gates near A5, Saturday, August 6, waiting for a 1:40 pm flight to Portland Maine, after a flight to Chicago had taken off from the same gate.]

This is likely an extension of the SPOT program, the largely discredited waste of taxpayer dollars by which the TSA thinks its poorly-trained screeners can pick out terrorists just by looking at and talking with them.  Please remember that you have no obligation to answer their questions, and although there may be additional screening, they cannot deny you boarding for remaining silent.

Corbett v. TSA III – Appeal Dismissed (.pdf)

PS – Delta, you suck.  7 hours of scheduled flying became 14 today because you still use a computer system designed during the Reagan administration.

DHS Wants Tourists To List Their Facebook Accounts to Enter Country

If you’re a non-U.S. citizen entering the U.S. with a passport issued by one of our friends in Europe, you can enter “without a visa” by completing an “Electronic System for Travel Authorization” form online and paying a fee (which, if you think about it, is really no different from getting a visa… it’s just you print a piece of paper instead of get a mark in your passport).

The questions on the application are mostly the typical stuff you’d expect we might ask those entering our country, but DHS now proposes to add one more:

“Please enter information associated with your online presence—Provider/Platform—Social media identifier.”

What’s wrong with that?  Well, I’ve explained in a letter opposing the proposed rule that there are many problems with this.  The first is that it’s not even clear what one would need to disclose, and sometimes disclosure may be a troubling basis for discrimination:

Do I need to think back to the MySpace account that I created in 2003 and have not used since 2006?  If I have a username for a chat room or message board, does that count?  What about Tinder?  Or perhaps I use the popular dating app for gay men known as Grindr.  Do you think it’s reasonable that I would then need to indirectly disclose my sexual preference as a condition of entering this country?  Or perhaps I use the Web site for connecting individuals with sexual fetishes known as FetLife.  Will you then review my FetLife account and determine if my preferred variety of kinky sex is acceptable?  If it is uncovered that I enjoy being dominated by women in latex bodysuits while ball gagged, will a CBP officer consider me the same level of security risk as one who prefers long walks on the beach and seeks a partner who loves Jesus?  Speaking of Jesus, many people use social networking related to their religion (Christian Mingle, JDate, etc.).  Now you’d like to know my religion, too?

Not particularly worried since you’re a U.S. citizen and therefore won’t have to personally deal with this problem?  Think again…

When the U.S. government implements a stupid rule affecting foreign visitors, other countries implement retaliatory rules on U.S. citizens seeking to enter their territory. …  Many other countries require visa fees only from U.S. citizens (or higher visa fees only for U.S. citizens), or fingerprinting only for U.S. citizens, in retaliation for what we do to their citizens.  I don’t want to have to share my Facebook details in order to travel, and if you implement this rule, it is all but certain that I shall have to do so as other countries decide to implement retaliatory rules.

It would be nice if DHS, for once, could do something that would actually improve our safety rather than play around with technology that they know nothing about.

[Edit – Online comments are now allowed from the public!  Let DHS know what you think!]

TSA: Taking Pictures Of Our Dogs Is Illegal!

tsak9
I’m told that this picture is very illegal.  TSA K-9 handler at JFK T1 immediately before ordering me to stop taking pictures.

On Friday, I flew out of New York’s JFK T1 after experiencing what was the longest airport security line I have ever seen. It literally stretched from the zig-zag queue at the center of the terminal to the far end of the terminal, and then around the corner. The TSA, of course, knows that terrorists now target security lines, rather than airplanes, and doesn’t seem to care that they are putting us at risk, but I digress.

After finally reaching the front of the queue, I spotted, for the first time, the TSA’s new experiment with bomb-sniffing dogs. Interested in finally seeing the TSA put a far better solution in place for the detection of non-metallic explosives than the body scanners, I snapped a few pictures, including the one here.

But, of course, the TSA can’t leave well enough alone. “You can’t take pictures!” barks the dog’s handler. I can’t? Well that’s news to me, and I consider myself pretty up-to-date on aviation security law. 🙂 I soon spot an STSO (supervisory transportation security officer — the “3 stripe” blue uniform people) and ask her to clarify, but she tells me she doesn’t have time to talk to me. Eventually, I spot her boss, the TSM (transportation security manager — always wearing a suit), a very friendly South Asian woman who is cheerfully tells me that my First Amendment right to photograph has been suspended:

Jon: Are you the TSM by chance?

TSM: Yes.

Jon: I have a question for you.

TSM: Sure.

Jon: What’s the policy on taking pictures in line?  The person with the K-9 told me I was not allowed to take pictures.

TSM: Yes, that’s a screening process, what he’s doing there, so you’re not allowed to take pictures.

Jon: OK, so that’s a federal regulation?

TSM: Yes.

Jon: Not New York state, that’s a TSA…

TSM: No, not New York state, it’s federal.

Jon: Ok, so if I ask the TSA, because I’m a civil rights advocate, and my job is to sue the TSA, if I ask them, they’re going to tell me that I’m not allowed to take the pictures, and that’s official TSA policy?

TSM: You have to specify what you were doing.

Jon: Taking a picture of a K-9.

TSM: You can’t.

Jon: OK.

TSM: Because that’s a screening process.

Where legal, I generally record my interactions with the TSA, and New York being a 1-party consent state (any party to a conversation may record it), I got an audio recording (.mp3).  (As a side note, a reasonable argument can be made, and some courts have held, that audio or video recording of government officials while working in public is constitutionally protected even in 2-party consent states.)

Why is this a “big deal,” some may ask: Any time the government restricts our ability to take pictures, they are reducing their accountability to the people. Thousands of times per day, law enforcement in this country violates the rights of citizens, but only occasionally is it caught on camera, and only then is it punished (sometimes).  By removing our ability to document their actions, they are insulating themselves from consequences for wrongdoing, and this a free society cannot stand.

I’ve asked the TSA’s Civil Rights Office to comment as to whether this is official TSA policy and await a reply, but expect a new lawsuit to be filed soon either way.

Terrorists Detonate Bombs in Brussels Airport — Before The Security Checkpoint

International media reports today that 2 bombs went off in BRU airport, just outside of Brussels, Belgium, and Islamic State has claimed responsibility.  How did they get these bombs past security?  They didn’t…

Passengers queuing at terminal counters described sudden panic and mayhem as the explosions turned the departure area into a death trap with flames, smoke, flying glass and shrapnel.

This is far from the first time such attacks have happened.  For example, just 5 years ago terrorists bombed DME outside Moscow, Russia, killing 37 people.

As passengers flying from US airports this year have been told to gear up for longer wait times, largely due to the additional time added to screening by body scanners that don’t actually stop threats, they should realize what this means is that the security queues are getting longer.  It sounds an awful lot to me like the TSA is creating a target rather than protecting one.  Would it make less of a terroristic statement for ISIS to blow up a TSA checkpoint with 150 people than to blow up a 737 with 150 people?  Of course not.

This mess brought to the taxpayer at a cost of $8B per year.


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

TSA Tries Doing Exactly What I’ve Asked It To Do for 5 Years: Metal Detectors + Dogs

The TSA announced an “exciting” “new” program that it’s trialing in MSP airport in Minnesota:

After a explosives-detection dog sniffs passengers for traces of explosives, travelers can then move through expedited screening like the Precheck program, where they can leave on shoes and light coats, and leave laptops and small containers of liquids in their carry-on bags.

“You’ll see them snaking up and down the line,” Neffenger said of the canine teams. “I’m very excited about getting extra teams here.”

(source)

In other words, passengers that pass a dog skip the body scanner and go through a metal detector.  This is exactly what I’ve been asking the TSA to do since the very beginning, because:

  1. dogDogs are by far cheaper than the body scanners.  A body scanner costs $300,000, functions for less than a decade, and requires significantly more man-hours per
    passenger than a dog, which may cost low-5 figures to train and a couple bucks a day in food.
  2. Dogs are by far tougher to beat than the body scanners.  The fact of the matter is that if you’ve been working with explosives, you likely have traces of it all over your body, and you’re likely not fooling Rover, while in 2012 I proved that beating the body scanners takes no more than a sewing kit.
  3. Dogs are far less invasive than the body scanners.  These dogs are trained to detect explosives only, while a body scanner is set to alert on anything on your body, including medical devices, scars, hygiene products, your baggie of weed, etc. Dogs are a targeted search only for the stuff the TSA should actually be looking for.

Instead of spending nearly $2B by now on technology that people hate because they are slow, invasive, and emit poorly-studied radiation… instead of fighting tons of legal battles… instead of making them perhaps the most hated federal agency on the planet… they could have just done this 5 years ago.

Let’s hope their pilot program goes well and the body scanners are relegated, along with a pat-down option, to those who fail Fido’s nose.

Fully Briefed: Can The TSA Force You To Speak To Fly Home?

lipssealedAfter being told that I wouldn’t be allowed to board a flight back to the U.S. without cooperating with a “security interview” last December, I filed suit against the TSA in February challenging this program on Fifth Amendment grounds.  We all have the right to remain silent AND the right to return to our home country, and we should not have to give up one to use the other.

The TSA has already backtracked on the issue, telling the court that whoever told me I’d be denied boarding (a TSA representative, an airline representative, and the interviewer himself) was mistaken.  So, in some ways, this issue is already won, but the problem remains that the TSA’s written policy is ambiguous as to what should happen to someone who refuses to speak, and so airlines and their interviewers may not know that the TSA’s position (now that they’ve been called out on it in court) is that denied boarding is not required.

The case is now fully briefed before the U.S. Court of Appeals for the Eleventh Circuit, which means that all sides have spoken and the court may now rule on the matter.  Or, it may order additional argument, orally or in writing, before it makes its decision.  There is no set timeframe, but it will likely take “a few months.”

The docs:

Corbett v. TSA III – Opening Brief (.pdf)

Corbett v. TSA III – Administrative Record, Vol. 1 (.pdf, 14 MB)
Corbett v. TSA III – Administrative Record, Vol. 2 (.pdf, 18 MB)

Corbett v. TSA III – Respondent Brief (.pdf)

Corbett v. TSA III – Reply Brief (.pdf)


Fighting the TSA in court is expensive!  Want to contribute to the fight against TSA assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

 

 

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