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 Jonathan Corbett, Civil Rights Attorney

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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

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)

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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