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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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.

Is It *Really* Impossible To Get A Gun License in NYC? (Part I)

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.

nycgunlicense
What you need to apply for a NYC gun license — to start!

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:

Corbett Gun License App Reply (.pdf)

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…

callproof

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.


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

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

 

 

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.

Should You Agree to “Arbitration Clauses?”

arbitrationIt 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:

  1. 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.
  2. 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.
  3. 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!)
  4. 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.
  5. 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.

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)


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

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!

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