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:

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)

May 16, 2017 13

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

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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April 11, 2017 16

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.

January 9, 2017 17

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

At 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)

January 4, 2017 4

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

Since 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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September 29, 2016 18

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.

August 8, 2016 17

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

After 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)

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March 7, 2016 12

TSA to the 94% Opposed to Body Scanner Rule: “Oh, you thought that we cared?”

In 2010, the TSA implemented the nude body scanners as primary screening without publishing a formal rule, as agencies are required to do in such circumstances. Thanks to the Electronic Privacy Information Center‘s lawsuit, they were ordered to do so in 2011, and started that process by soliciting public comment in 2013.

As I wrote about in January, over 5,500 people responded, and of those who took a position, 94.0% opposed the rule (with many opposing the existence of the TSA entirely). If you were a part of that 94.0%, or agree with them, the TSA has a message for you:

itdoesntmatter — The TSA’s official response to the 5,129 people who wrote in opposition to its proposal to use nude body scanners.

At the end of last week, the TSA issued a 157 page document detailing why it is going to scan you anyway (.pdf). The document devotes approximately 17 pages to the background of the issue and the actual rule itself, less than 1 page addressing the supporters of the body scanners, and the remaining 138 pages going through the opposition to the rule and explaining that it knows better than everyone else, whether they be pilots, aviation security experts, civil rights groups, or just people explaining their own personal feelings.

The notice-and-comment rulemaking that the Administrative Procedures Act required the TSA to perform was intended to make the government responsive to the people. Do you think that the TSA is demonstrating what a responsive government looks like? The TSA is hoping that it doesn’t matter what you think. But we continue the fight, because eventually agencies that overstep their bounds are humbled by our representatives or the courts. It takes a lot of pressure to build before that happens, but as the TSA continues full-steam ahead, the pressure rises.

March 5, 2016 2

Update: TSA Asks Court Not to Hear Brief Regarding Stay

Earlier today, I posted the briefs relating to my motion to stay the TSA’s new rule allowing it to refuse opt-outs. Not long after, I received an e-mail noting that the TSA will oppose allowing the court to consider my reply brief.

Why? Because it’s long.

The Federal Rules of Appellate Procedure govern how things work in cases heard by the Court of Appeals. Indeed, Fed. R. App. P., Rule 27(d)(2) limited my reply to 10 pages, when it was 19, “unless the court permits or directs otherwise.” My reply was filed along with a routine motion for permission to file excess pages, and I’ve actually never seen such a motion opposed, let alone denied.

In my reply brief, I noted that “avoidance of judicial review” is common for the TSA, which argues anything it can to get a court to decline to even consider whether the TSA’s actions are lawful. It’s wrong, and plainly, it’s against the deep-rooted American value that we should be able to meaningfully petition our government for redress. To reply to a brief accusing you of evading judicial review with a request that the court not hear the brief is the definition of an agency — and its attorneys — demonstrating their contempt that one would dare to challenge them.

I take this as a positive: I don’t expect the court to refuse to hear my brief, and I don’t think the TSA would have filed such a disfavored opposition if they weren’t scared that my Motion to Stay had a chance of being granted.

Corbett v. TSA IV – Opposition to Motion for Leave to File Excess Pages (.pdf)

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January 20, 2016 21

Motion to Stay TSA No Opt-Out Policy Fully Briefed

When I challenged the TSA’s new policy allowing it to refuse a request to opt-out of going through the body scanners in favor of a pat-down, I included a motion asking the U.S. Court of Appeals to stay the TSA’s new policy until the case is resolved. That motion is now “fully briefed,” meaning the court may rule on it at any time:

“The TSA’s opposition to the instant motion fails to explain why it felt the need to make the policy change in question. Respondent summarily states that ‘[p]reventing TSA from requiring certain passengers posing a heightened security risk to undergo AIT scanning would undermine national security and jeopardize public safety.’ But unlike when it rolled out the body scanner / pat down program in 2010 and clearly told the public that it needed to do so to stop nonmetallic explosives, the TSA has never explained why it feels that passengers posing a ‘heightened security risk’ need to go through a body scanner instead of a pat down. If something has changed such that there is, all of the sudden, a new, compelling reason [that pat-downs are insufficient], the TSA must identify that to the Court rather than make generic statements about how they are charged with providing aviation security and want to do what they want to do because they know best.”

I also asked for oral arguments on the matter before the court rules, but I think it’s likely that they will rule simply on the documents without hearing us in person. Source documents (my motion, their opposition, and my reply to their opposition):

Corbett v. TSA IV – Motion to Stay (.pdf)

Corbett v. TSA IV – Opposition to Motion to Stay (.pdf)

Corbett v. TSA IV – Reply to Opposition to Motion to Stay (.pdf)

As we wrote about this week, the TSA’s body scanner & pat down program was opposed by 94% of the public when asked for formal comment. The idea that they would take public comment, hear negative feedback, and then double-down on exactly what the public asked them not to do by making it mandatory is insulting and emblematic of the TSA’s failure to serve the public rather than do as it pleases.

If you were one of the many who have donated since this challenge was filed a few weeks ago, this motion happened because of you — thank you once again!

January 20, 2016 7

Category: TSA – Lawsuit