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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

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TSA – Lawsuit

TSA: Forced Strip-Search No More Offensive Than Voluntarily Using a Locker Room

TSA's Motion to Dismiss Mengert Lawsuit
The TSA fails to appreciate the value of consent.

In June, my client Rhonda Mengert filed suit against the TSA for forcing her to expose herself and show them a feminine hygiene product she was wearing.  The strip-search of this 51-year-old grandmother was flatly against TSA’s own rules, yet strip-searches happen over and over at airports across the country, perhaps as a result of poor training, high turnover, failed background checks, or… well, who really knows why they can’t get it together?

What we do know from the TSA’s 24-page reply to the lawsuit (.pdf), a motion to dismiss filed Friday in U.S. District Court for the Northern District of Oklahoma, is that they don’t think they should be held responsible.  Much of their rationale is the standard technical stuff that one expects of defense lawyers and we’ll respond to that in due course.

One of their rationales, however, is so absurd, offensive, and regressive that I am shocked to see it written by anyone in 2019, let alone a well-educated woman from the U.S. Department of Justice.  In her motion, Assistant U.S. Attorney Rachael Zintgraff writes that a forced government strip-search just isn’t that big of a deal as to justify a lawsuit:

These allegations amount to no more than indignities, annoyances, and petty oppressions. Even if it was subjectively “embarrassing,” “disturbing,” “humiliating,” and “offensive,” for Plaintiff to lower her clothing and show the feminine hygiene product she was wearing, the intrusion on her privacy was no more severe than what could be routinely experienced in a women’s locker room, where states of partial undress and feminine hygiene products are subject to observation by other members of the same gender.

Is a rape victim’s trauma is no greater than they would have had during consensual sex?  Can peeping toms now use this same defense?  If not, then how can one possibly argue that having 2 uniformed federal employees force my client into a back room to show them her most intimate areas is in any way comparable to one voluntarily using a locker room?

The difference between “extreme and outrageous” and “just locker room embarrassment,” Ms. Zintgraff, is consent.  And respectfully, while I don’t personally have a lot of experience with women’s locker room etiquette, I must assume that inspecting each other’s pads is generally not a part of the experience.  At least DOJ attorneys have moved on from arguing that kids detained for weeks don’t need blankets or toothbrushes… it’s just unfortunate that they’ve now taken up selling out on women’s rights in order to avoid paying a woman who they violated.

Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be.  But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory.  I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?”  The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.”  All that means is you have to actually have a specific legal “injury” to complain of.  A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes).  No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!”  What are the odds?  Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order.  In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it.  (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare.  This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons.  [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc.  Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

Justice is Slow: TSA Case Waiting 2 Years, Gun Rights Case Now 5 Months

Fully Briefed in 2017

I have two significant cases pending at the moment:

My readers regularly ask me (in comments, on Twitter, by e-mail, etc.) for updates, and my answer is always the same: I’ll post them as soon as I have them.  The gun rights case above has had the government’s motion to dismiss pending before the court, fully briefed (that is, all parties have been completely heard and we are just waiting on a ruling), for 5 months.  Especially considering the government shutdown earlier this year, that’s not abnormal.

However, yesterday marked the 2 year anniversary of the TSA case being fully briefed before the U.S. Court of Appeals for the Eleventh Circuit, which has neglected the case for that amount of time.  This is not the usual amount of time to wait on an appeal, so I sent that court an anniversary card this afternoon.  I wouldn’t exactly say that courts “appreciate” reminders that they are taking too long, but at some point, the prejudice to my case and our rights outweighs the risk of offending a judge’s feelings.

There is no statutory limit to how long a court can take, although courts often rule within 6 months because they have to report to Congress when cases take longer.  Be patient with me — and I promise I’ll post updates as they come.

 

DHS to Expand Security Interviews on International Flights?

Security Interview Sticker
Well-Behaved Travelers Get a Sticker After a Security Interview!

I was almost booted from a Christmas 2014 flight from London to New York for refusing to answer questions posed by airline staff (not customs) about what I would be doing in my “destination” (a.k.a., my home), and I was clearly told that failure to participate in their “security interview” would result in denied boarding.  After the flight, I sued the U.S. Department of Homeland Security, who encouraged several foreign-flagged airlines at several “airports of interest” to implement these policies.  The U.S. government immediately backtracked, saying in court that interviews were not mandatory and could not result in denied boarding — that these airline employees were mistaken.

That front has been quiet for the last year or so, until the media yesterday reported that airlines are increasing security for U.S.-bound flights starting today, including “security interviews:”

New security measures including stricter passenger screening take effect on Thursday on all U.S.-bound flights to comply with government requirements designed to avoid an in-cabin ban on laptops, airlines said.

Airlines contacted by Reuters said the new measures could include short security interviews with passengers at check-in or the boarding gate, sparking concerns over flight delays and extended processing time.

As it would be trivial for someone with bad intent to invent a story about where they were going, or simply leave off the part of their plans that involves blowing stuff up, the airlines are, apparently, displeased with this nonsense:

“We see this as a big issue for China Airlines,” Steve Chang, senior vice president…

It’s just inconvenient for the passengers,” [Korean Airlines] President and Chief Operating Officer Walter Cho told Reuters in Taipei.

“Unilateral measures announced without any prior consultation… That is something that is very concerning and disturbing.” [Alexandre de Juniac, CEO of IATA (International Air Transport Association)]

So what happens when a passenger refuses to participate in the security interview this time?  Well, it just so happens that I’ll be on an inbound flight quite soon, so we’ll see, as I certainly won’t be participating, and I guarantee a lawsuit in 24 hours or less if denied boarding.

Update: DL inbound flight today, “interview” consisted of making sure I packed/watched my bags.  Nothing new here except it was asked at the gate. Will look forward to hearing experiences by other travelers.

Fully Briefed: Can TSA Refuse Body Scanner Opt-Outs?

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:

  1. 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.
  2. 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.

tsa_is_absurd

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)

Corbett Files Amicus Brief in “Naked Man at TSA Checkpoint” Case

John Brennan's Nude Protest at PDX TSA Checkpoint

Although it is discouraging how many people go through TSA checkpoints and submissively comply with (or even show appreciation for) security theater, there are several Americans who have made loud statements.  Interestingly, the name “John” seems to increase one’s likelihood of making a stand: John “Don’t Touch My Junk” Tyner, John “You Don’t Need My ID” Gilmore, yours truly Jon Corbett (if I do say so myself!), or in this case, a man named John Brennan.

In April 2012, Brennan found himself at Portland’s airport, opting-out of the scanner and allowing the TSA to pat him down.  But, upon the completion of the pat-down, the molester screener tested his gloves for explosive residue, resulting in a false-positive.

False positives are not exceedingly rare (in fact, every positive has been a false positive, given that the TSA has found 0 terrorists since its inception in 2002), and the TSA has a procedure for when this happens: take you to a back room, and use the front of their hands to rub your genitals.  No hyperbole here, folks: this is exactly the procedure, and the one thing I make sure all my friends and family know about TSA screening is that it is better to miss your flight than to go to the back room with a TSA screener.  Regardless of what they threaten, do not go.

But Brennan had a better idea: he simply took off all his clothes, right there in the checkpoint, and asked the TSA if it looked like he had a bomb.  Predictably, the TSA overreacted, refused to screen him, closed the checkpoint, called the police, and had him arrested.

Only problem is, nude protests in Oregon are completely legal, and a judge entered a verdict of acquittal without even letting the case get to a jury.

Dissatisfied with this, the TSA imposed a civil penalty against Brennan under a federal rule that punishes those who “interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties.” 49 C.F.R. § 1540.109.  Brennan took the case to the U.S. Court of Appeals, where the TSA argues, with a straight face, that any “failure to obey” or causing of a “distraction” constitutes “interference” under the rule and subjects you to a fine.

Fuck that.

The U.S. Supreme Court has squarely rejected “contempt of cop” laws, whereby those who do not “obey” random orders of police officers can be fined.   Chicago v. Morales, 527 U.S. 41 (1999).  The idea that we should give TSA screeners more authority to force us to submit to their every wish than a police officer is absurd, offensive, and dangerous.  As such, I’ve filed a motion to consider an amicus curiae (“friend of the court”) brief, where I’ve outlined for the Court how the TSA has abused the power they already have, and how an expansion of that power will allow TSA screeners to arbitrarily curtail the First Amendment rights (among other rights) of anyone at the checkpoint under threat of fine. (I can only imagine how many times I’d have been fined were the TSA confident they could do so merely for being annoying!).  It also discusses the Morales case, above, which Brennan’s attorney didn’t bring to the court’s attention…

To the extent the public was injured on April 17th, 2012, it was not injured by John Brennan removing his clothes, but rather was injured by the TSA and airport police attempting to quash a constitutional right that Americans hold close to our hearts: our right to petition our government for redress. For the foregoing reasons, the Court should decline to allow the TSA to become a discount legislator, police officer, prosecutor, judge, and jury, and accordingly set aside the order levying a fine against John Brennan.

This was my first amicus brief ever, and they’re kind of fun to write because you have to be concise, but get to discuss only the issues that you personally care about.  Would definitely do again!

Brennan v. D.H.S. – Proposed Amicus Brief of Jonathan Corbett (.pdf)


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

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TSA Quietly Forcing Some Passengers To Go Through Body Scanner *And* Pat-Down — Even If Body Scanner Says Clear!

tsa_molestation_or_radiation

Image credit: DDees.com

 

When the TSA announced in 2015 that for “some passengers” they were eliminating the body scanner opt-out option, which allowed passengers to be screened via pat-down instead of body scanner, they phrased it as follows:

“TSA is updating the AIT PIA to reflect a change to the operating protocol regarding the ability of individuals to opt opt-out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers. … The individual will undergo physical screening if ATR alarms for the presence of an object.”

For those not into TSA jargon, AIT = body scanner, ATR = the software on the body scanner that allegedly detects stuff on your body, and “physical screening” = pat-down.

But, new documents I obtained in my lawsuit against these policies (source, pp. 27, 28) show that they lied about a key fact: if you are selected as one of these “some passengers,” you will be screened with both body scanner and pat-down, even if the body scanner does not alarm:

“That does not preclude TSA from determining that security considerations may sometimes justify exceeding the baseline established by the pat-down technique by requiring certain passengers to undergo both AIT screening and a pat-down—two screening methods that provide distinct benefits when used in tandem. … These [redacted] empirical findings supply ample justification for TSA’s decision to require selectees to be screened using both AIT scanners and a pat-down, without the ability to opt for a pat-down alone.”

Further, the pat-down you’ll receive in this scenario has been modified, although the TSA has redacted from the document exactly how (my best guess, based on my research of all documents and the TSA’s past treatment of passengers selected for additional screening, is that your “sensitive areas” will be touched with the screener’s front-of-hand, rather than back-of-hand).

So, who are these “some passengers” that the TSA is subjecting to both a scan and a proper groping?  As discussed in my previous post on this lawsuit: anyone can be randomly selected for this treatment.  If you’re on the TSA’s “we think you might be a terrorist” list, you’ll be a “selectee” every time you fly.  But, if you buy a one-way ticket with cash, or something else the TSA finds to be “suspicious,” or even if you don’t and you just get unlucky, you can now expect blue gloves between your legs.

It is highly troubling that the TSA is demanding invasive double-searches without disclosing their intentions to the public.  And what does this say about the nearly $2B body scanner program, if the TSA feels the need to pat people down after using them?  Clearly it shows that the TSA knows the body scanners can easily be beaten, so why have them at all?

The reason, of course, is [REDACTED] — the best way to avoid being accountable to the people.

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)


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