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.
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:
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…]
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.
Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:
The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:
Listen, I’m not here to argue with you. I’m telling you what we’re supposed to do. I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers. [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong. Ok? Clear?”
The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.
Some areas of the law are gray areas. Others are perfectly clear. Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear. From the TSA’s Web site:
“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”
I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:
Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.
Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:
It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.
This kind of nonsense happens all the time, including to me. Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated. It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.
In the meantime, at the least we can get a laugh out of the end of the video. The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):
I hope you’re recording everything. Are you recording me now? Can you please erase that?
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.
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.
A “laptop ban,” because older x-ray equipment can make it difficult to distinguish a laptop battery from a block of C-4. The better solution being an upgrade of older x-ray equipment notwithstanding, every recent airport attack has either detonated a bomb before the security checkpoint or used an alternative weapon — like a knife.
A more thorough molestation when going through TSA checkpoints. Because despite all the other holes in TSA security, grabbing everyone’s genitals makes us feel safer, right?
One of the more interesting (sometimes, disturbing) parts of “my job” is that I get e-mails from people across the country on a regular basis describing abusive TSA practices. These accounts range from descriptions of the TSA’s usual pat-downs, of which the author was shocked to realize happen that way, to descriptions of clear violations of TSA procedure, thuggish attitudes, and down-right sexual assault. There is one common theme beyond blue gloves: a high percentage of the time passengers feel abused, it is when they go to “the private room.”
For those of you who have had a TSA full-body pat-down, you probably know the speech they give you: a description of how they’re going to touch you, a note that they’ll be using the back of their hands on your “sensitive” areas, a question as to whether you have any injuries or medical devices, and finally, an offer to conduct the screening in private.
For the love of god, please do not take them up on this offer.
In the private room, there are no cameras, there is no supervision, and if you say the TSA screener inappropriately touched you, it is unlikely you will convince a TSA supervisor, a police officer, or a judge to believe you. Every checkpoint in the country has many cameras, and you can actually request footage from them by Freedom of Information Act request. If something goes wrong (well, more wrong than usual), this is your only hope for justice.
Sometimes, the TSA will insist that they conduct private room screening. In particular, this will happen if you alert the explosive trace detector. In this case, the private room screening will be even more invasive than usual. They will literally be grabbing your genitals with the front of their hands. Even if it results in missing your flight, do not go. Even if the TSA insists that you must, refuse. At some point, you have to draw the line — I urge you to draw it at this point or before. Let them throw a fit, call the cops, or whatever it is they threaten you with, but at the end of the day, they have to let you go.
Private screening allows the TSA to hide their pat-downs from everyone else, making it seem more rare and keeping the public less on notice of what may happen to them. By forcing the pat-down to be in front of everyone else, you are taking a small stand.
If you think I may be exaggerating, here’s an example of the kind of e-mail I get (warning: graphic):
This kind of sexual assault happens all the time, leading to a headline in 2011 where three different senior citizens in three different incidents accused the TSA of strip-searching them in the private room. But most of the time, stories like these get no media attention. The victim may file a complaint, and nothing happens.
Catching your flight is just not worth it. Please help me get fewer e-mails like this and spread the word.
P.S. – One more suggestion, if I may: tuck your shirt into your pants before a pat-down. If you do so, you won’t be asked to lift up your shirt, and you won’t feel their latex-coated hands on your bare skin.
I just passed through a TSA checkpoint at Miami International Airport, where, during my pat-down after opting out of the body scanner, I was placed directly facing a monitor that showed a laptop that was being screened (notwithstanding that TSA policy is that such screens should be hidden from view of passengers). From that image, it was clear that components underneath the battery of the laptop were indeed visible to the operator, and looked more like this image posted by bomb-detection specialists DSA Detection:
In other words, lithium batteries are not completely opaque “black boxes” which airport x-rays cannot penetrate.
Now, are the x-ray machines in the 10 airports subject to the current laptop ban of the newer technology which produces images like the one shown here, or the older that produces images like in my previous post? I must assume that if DHS has used any logic whatsoever, these 10 airports are using the older technology and that’s why they’ve been shit-listed. But there is no way all of Europe uses this older technology, and I truly hope that DHS’s European counterparts continue to resist the nagging of DHS to ban carry-on laptops anyway. DHS should be helping any airport with inferior technology or training to get up to speed, not treating everyone outside of the country as if they are inept and inferior (especially when comparing others to the TSA… you know what they say about those in glass houses…).
What has been missing from the story is, “Why?” Authorities have only disclosed a generalized fear that laptops could be used to conceal explosives, and have expressly denied a specific threat. But laptops have been around for decades, and as surely any sophisticated terrorist has heard of timers, why does it matter if you ban them from the passenger cabin if you allow them in the cargo hold?
A commercial aviation security official that I have verified but will not publicly name has explained the rationale to me: x-ray equipment of the variety commonly used for screening carry-on baggage disappeared a few months ago from a location in the Middle East, and it is suspected (perhaps even recently confirmed, given the desire to expand the ban) that ISIS members have stolen the equipment such that they can study how to properly conceal an explosive. Given that a bomb smuggled in a laptop exploded at an airport security checkpoint in Somalia on March 6th, 2017, it appears DHS has concluded that the theft was related and laptops were the concealment method of choice.
It’s not bad reasoning since lithium batteries are completely opaque to x-rays, and therefore a battery-sized metal box filled with explosives would look exactly the same [Edit – This is not true for the newest technology x-rays… read more…]. But, there’s three problems with the reaction that make the laptop ban the wrong idea:
Once the laptop ban was put in place, anyone who planned to use a laptop to conceal a bomb was tipped off and will simply try another approach. This is reminiscent of the failed “toner cartridge bomb,” after which the U.S banned toner cartridges from flights. But obviously, a toner cartridge is only what they chose that day… a stereo, Xbox, or, well, laptop, would have worked just as well. Likewise, just because they’re doing it in carry-ons now does not mean they won’t switch to checked baggage next.
A laptop battery actually holds similar energy to a small bomb. While it’s not easy to make a laptop battery release that energy all at once in an explosion, a fire in the cargo hold created by batteries malfunctioning (not Galaxy S7!) resulted in at least 2 deaths by plane crash so far (all-cargo, not passenger, flight, thankfully). By forcing all these batteries into the cargo hold where a fire cannot be rapidly detected and contained, DHS would be countering any deceased risk of terror with an increased risk of fire.
It is simply not economically viable. Taking away what would surely amount to millions of man-hours of productivity every year is simply not the solution (exactly $1.1B of loss, industry group IATA estimates, quite conservatively in my opinion). It would be far less economically impactful to swab every laptop that comes through the checkpoint for explosive trace residue.
So why was the stolen x-ray equipment kept a secret? I asked my source if there was some security reason for keeping the stolen x-ray equipment from the public, and was told, unequivocally, no. “It’s because the mom from the midwest planning to fly her kids to Disney would freak out. They are worried that people would stop flying if they knew.”
My thought would be that the public would be much more understanding if the government was more forthcoming. But apparently the U.S. government feels that you can’t handle the truth and therefore hides behind secrecy laws to withhold the full story. This hiding is, of course, illegal, since, with exceptions not relevant, to withhold information as “sensitive security information” (SSI) requires that the release of the information would be “detrimental to the security of transportation,” not detrimental to mom’s willingness to go on vacation (49 C.F.R. § 1520.5(a)(3)). The TSA, a sub-component of DHS, is well-known for using the · SSI designation in an · “inconsistent and arbitrary” nature, as well as merely to avoid embarrassment, so it is not particularly surprising when the parent agency does so as well. [I have reached out to the DHS press office, which has declined to comment on this story.]
(Note that my source did not specify whether this information was SSI, classified, or otherwise protected, but I assume it is presently SSI and not classified given my source’s role and reports that U.S. authorities have discussed the situation with airline officials, which would not be done for classified information.)
Putting together one more piece of the puzzle, it seems to me that the classified information leaked by President Trump to the Russians earlier this month was very likely the details (beyond that which are reported here and beyond my knowledge) about the how the government was able to infiltrate ISIS to investigate the use of the stolen x-ray machines. Most news organizations did not report the nature of Trump’s disclosure other than that it related to “a plot by Islamic State,” although the Washington Post actually did describe it as laptop-ban related. So at the same time as the American people are mislead about the risks of flying, the Russians were given more information than the airlines and airport operators who are responsible for actually keeping bombs off of planes.
So, to recap: the government lied to us when they said there wasn’t a specific threat, they withheld information from us because they thought we’d be scared, and they implemented a laptop ban that will be ineffective and expensive at best, dangerous (as a result of increased fire risk) at worst. Business as usual.
“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/“