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.”
Dogs 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.
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.
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.
If you ask a random person living in NYC how hard it is to get a gun license, they will probably tell you that if you want a license to carry a gun, you have to be a cop, work as a security guard, or “know someone” (i.e., be rich and have donated to the right politician or organization). The thing is, I couldn’t find anyone who didn’t fit into one of those categories who had actually tried, and in light of semi-recent Supreme Court rulings that the 2nd Amendment is an individual right, not limited to “militias,” I figured it was about time to put it to the test.
I gathered all the forms together, went down to “1 Police Plaza” — the NYPD headquarters in lower Manhattan, and was promptly told I could not apply because I didn’t have an ID card issued by the New York DMV. Apparently a Florida driver’s license, a social security card, and a U.S. passport were insufficient to prove who I am, even though all of those are sufficient to get the New York DMV to give me an ID card.
But, no problem. A New York ID lasting for 8 years turns out to be a $12 investment. My complete, “accepted” (as in, they were willing to consider it) application is pictured above: 1 three-page application, 1 letter of necessity, 1 letter explaining any checkboxes you may have checked that need explanation (Ever had a speeding ticket? That needs to be explained!), 1 letter from your roommate approving of your license or an affidavit that you have no roommate (My 2nd Amendment rights are contingent on my roommate’s permission?), 1 affidavit from someone willing to take possession of my guns if I die, 2 photos, 1 New York ID, 1 U.S. passport, 1 social security card, and $429.75. Oh, and a copy of my business tax return.
Business tax return? In order to apply to carry a firearm in New York City, you must provide a business reason. This seems likely to be ruled unconstitutional if challenged today in light of the new Supreme Court rulings, but I happen to run a business for which I have the necessity to get a gun license: I am a civil rights advocate, I need a license to exercise my civil rights, and thanks to your donations over the last 5+ years, I file a business tax return annually.
The application also asks a lot of extremely personal and seemingly irrelevant questions. Have you ever been fired from a job? Taken a sedative medication or pain killer (you’re checking yes if you’ve ever had surgery)? Testified before Congress? The NYPD wants to know. If your answer to any of the above is yes, add that to your explanation form next to your speeding ticket explanation. For all of these questions, I checked no box and explained on the form that I refuse to answer because they are irrelevant.
But, apparently that’s good enough to get the app in processing. After everything is paid for, fingerprints are taken (included in that $429.75 fee, which, by the way, is non-refundable if you are denied a license, and lasts for only 2 years assuming you do). A few days later (shockingly promptly), I get a letter from the officer assigned to examine my case:
The reply is a request for *25* more documents that the NYPD needs to complete my application. Some of the highlights include:
3 letters of recommendation, notarized and signed by people who know you for at least 5 years but are not family members
The original court records for any of those speeding tickets you listed on your application
A letter from your doctor describing your mental illness (funny, since I checked “no” on the “is a doctor treating you for a mental illness” box on the app)
6 months of bank withdrawal slips
Pictures of your business, inside and out
A whole lot of tax records
I’m really good at paperwork, so I compiled everything (or explained why I cannot, or will not, be getting them a particular document). The letter says that once I do that, I should call Police Officer Thomas Barberio.
So I called. And I called. And I called…
No less than 10 times on 7 different days. Officer Barberio is, it seems, never around. So I sent a fax. No reply.
For Part II of my journey, I head back to 1 Police Plaza to see if we can find Officer Barberio or his supervisor. Stay tuned.
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.”
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:
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.
It is increasingly common to find consumer contracts (the things you agree to when you buy stuff or services, like a rental car, Netflix subscription, or anything that contains a written warranty) containing “arbitration clauses.” They’re usually in capital letters or bold print, most often buried many clauses deep in the contract, and say something to the effect of this:
…IN THE EVENT A DISPUTE SHALL ARISE BETWEEN THE PARTIES TO THIS CONTRACT, IT IS HEREBY AGREED THAT THE DISPUTE SHALL BE REFERRED FOR BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. THE ARBITRATOR’S DECISION SHALL BE FINAL AND BINDING AND JUDGMENT MAY BE ENTERED THEREON…
What this language means is that if you and the company have a dispute, you both agree that you won’t take it to court, but will instead hire a “neutral” “arbitrator” to resolve the issue. The arbitrator can award any amount of money he or she sees fit, based upon the contract and the law.
Here’s why this sucks for the consumer:
Your right to proceed class action is cancelled. A “class action” is a lawsuit where lots of people claim that a company wronged them in the same way. Generally, it is for small amounts (maybe only a few dollars) that wouldn’t make sense for 1 person to waste their time going to court for, but if there are 10,000 people just like you and you can all sue in one joint lawsuit, the company can be held accountable. You generally can’t “contract away” the right to proceed as a class under most states’ laws, but by requiring arbitration, the Federal Arbitration Act (FAA) takes over the terms of dispute resolution, and the FAA allows for class rights to be signed away. You should therefore take an arbitration clause as a sign that the company is afraid that it has, or may, piss off a large consumer base, and wants to protect itself from any damages that can come from that. It’s a bad sign.
Your right to an appeal is cancelled. An arbitrator’s award, in general, cannot be appealed. Did your arbitrator turn out to be biased, or literally fall asleep during proceedings? Too bad, according to the FAA. With exceptions too narrow to be worth pursuing, a court cannot overturn an arbitrator’s award, no matter how unfair.
Your right to a cheap, quick resolution of small claims might be cancelled. Some arbitration clauses allow small claims to be heard by a small claims court — and some arbitrators refuse to hear cases based on contracts without such an allowance. This is a good thing: small claims can generally be resolved in less than 3 court appearances, for nominal court fees, without the need for an attorney, and within a few months. But, some arbitration clauses do not allow for this, and therefore even a claim for $5 comes with a hefty arbitration fee and longer, and more difficult, proceedings than in small claims court. The text of the arbitration clause will tell you if you can resort to a small claims court, but even this is not guaranteed, as some states will allow any party in small claims court to move a case to a regular civil court, at which point the company can argue that arbitration is now required. (Not the first time I’ve written about Citibank being sneaky and abusive!)
No case law is created. “Case law” is the decisions of courts in the past that influence decisions of courts in the future. For courts of the same jurisdiction and same level or lower, a decision on an issue is usually binding. For example, if the U.S. Supreme Court decides that TSA body scanners are unconstitutional and Plaintiff X, who was forced to go through one, gets $100 in damages, every other court in the country must follow suit and award similar damages to anyone who presents a similar case. When an arbitrator makes a ruling, it may or may not be public, but either way, it is binding on no one. Therefore, if the company has wronged 10 people in the same way, but has an arbitration agreement, even if the 1st to arbitrate wins, people 2 – 10 still need to argue the issue anew.
Oh, you thought the arbitrator was neutral? There’s a pretty big conflict of interest here. The companies are the ones including arbitration agreements in their contracts and sending work to the arbitrators. If one of the two parties sends all the work and the other does not, where does loyalty lie? Even if an individual arbitrator is conscientious enough to remain neutral, what effect does the conflict of interest have on the rules that the arbitrator has to follow?
For balance, I’ll note that arbitration can have some benefits for the consumer. For example, if the claim is for a large amount of money, it will be a shorter “trial,” and therefore you’ll be paying your attorneys less money. Arbitrators are also more likely to award attorney’s fees to you if you win. Also, in non-consumer contracts, you may sometime have an edge. A friend of mine involved in an employment contract dispute against a major corporation recently lamented to me that the attorney’s fees to take the major corporation — which could afford to prolong litigation to gain an advantage — may be unsustainable, forcing this friend to consider settlements beneath what his or her claim was worth. But in consumer contracts, the overall balance is clearly in favor of the company (which, of course, is why they put the clause in there in the first place).
But what can you really do about it? Well, to start, many arbitration clauses have an “opt-out” option, whereby you notify the company that you disagree, and the clause no longer applies. If this is an option in your contract, follow the instructions carefully to make an effective opt-out (before the TSA bans those opt-outs too :)). If it doesn’t, you can try negotiating the contract, even if the company is large. If it’s a paper contract, you may “negotiate” simply by crossing out the provision and initialing the change before signing. You’d be shocked as to how many times I’ve crossed out arbitration agreements and simply said, “I don’t arbitrate,” and they’ve said “Um, ok I guess.” If all else fails, tell them you’re heading to a competitor. Lost sales are, in the end, the greatest motivator to companies to create fair agreements with their customers.
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.
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):
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!
Before making a “substantive change” to regulations affecting the public, the TSA, like all government agencies, is required to engage in “notice and comment rulemaking.” The basic idea is that before a rule gets made, the agency should publish the proposed change and their reasons for proposing it and allow the public to provide feedback. The agency then reviews the feedback, responds to it, and decides whether or not to proceed with the proposed rule.
The TSA failed to do this before implementing the rule establishing the body scanners as primary screening in 2010, but was ordered to do so post hoc by the U.S. Court of Appeals for the D.C. Circuit, and did so in 2013. Over 5,500 people took the opportunity to tell the TSA how they felt.
While a quick look made it clear that the overwhelming majority was opposed to the scanners, there was no way to get a count of exactly how many were in favor and how many were opposed. So, I personally reviewed the 5,578 comments sent in and found as follows:
Opposed to the Rule:
In Favor of the Rule (Implants):
In Favor of the Rule (Other):
When all was counted and the comments that took no stance were removed, 5,129 people (94.0%) asked the TSA to discontinue its program of scanning and molesting the public, while 329 (6.0%) were in favor of continuing. It should also be noted that of the 329 in favor, 115 specifically mentioned that they were in favor because they or a family member has a metal implant in their body (such as a hip replacement, or a pacemaker) that could not pass through a metal detector and that they liked the body scanners simply because they were tired of being patted down by blue-gloved security personnel.
Of those opposed to scanning, the following were the most common reasons given (percentages approximate): invasion of privacy (~34%), violation of rights/unconstitutional (~31%), health risks (~23%), ineffectiveness for security (~12%), cost/benefit analysis (~11%), concern for effects on children (~5%), and a distinct group that requested the TSA to be completely disbanded, defunded, and/or privatized (~2%).
Of those in favor of scanning, the following were the most common reasons given (percentages approximate): artificial implant (~35%), feel safer (~29%), efficient (~7%), effective (~6%), “not a big deal” (~2%), too many “whiners”/”cry babies” (~2%). Many did not give a distinct reason, simply saying they support whatever is chosen or necessary. A large percentage also qualified their support on one or more conditions (“if it’s effective…,” “if it’s safe…”).
So, TSA, the public has spoken, and the consensus is clear: body scanners should not be used as primary screening, and if they are to serve any purpose, that purpose should be completely optional screening for those who cannot go through a metal detector and would prefer it to a pat-down.
For complete transparency, I’ve created and hereby publish a full report, indicating which comments were counted as for/against and discussing the methodology, which can be downloaded here:
The TSA announcement on December 18th, 2015, that the body scanners would “sometimes” be mandatory was phrased like this:
While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers.
…which, as someone experienced in translating TSA-speak, I assumed to mean, “We will force you through the scanners whenever the hell we want, especially if we don’t like you on that day.” But, there were then early rumors that by “some passengers” the TSA was referring only to those on the “selectee list” — an FBI-managed list, much like the no-fly list, that identifies passengers who may fly but only with additional screening.
Those early rumors have been thoroughly dispelled now that reports of actual travelers at the airports are coming in. Last week, one of our readers reported that despite being PreCheck, she was forced towards the body scanners, only receiving a reprieve by informing them that she is pregnant. And then, a couple days ago, the TSA attempted to make a passenger in a wheelchair, who was neither PreCheck nor selectee, stand for a scan:
“If you’re able to stand up, you will go through there [the body scanner], you cannot refuse screening.”
Unfortunately, the passenger in the wheelchair is Sai, another civil rights advocate who litigates against the TSA, and Sai caught it all on video:
While, after summoning the highest ranking TSA official in the airport and going through lengthy waits and arguments, Sai eventually was allowed through with the “opt-out” procedure, it seems perfect clear that the TSA is caught in a lie once again: its intent was not that “passengers may generally” opt-out, but rather its intent was that as many be forced through these machines as possible. To do so to someone who is partially disabled and has difficulty standing on his own for long periods of time is absolutely disgraceful, yet not surprising from this agency.
If you have post-Christmas opt-out stories, please share them with us.
Fighting the TSA in court is expensive! Want to contribute to the fight against TSA assholery? PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT