OT: Guys Sue Red Bull Because It Didn’t “Give Them Wings”

One of the things I hate, and pretty much every non-lawyer hates, about the legal system is that at the end of the day, the only real winners are the lawyers, who bill $250 – $1,000+ per hour to fight over what is often an absurd battle. Take, for example, Careathers v. Red Bull:

Benjamin Careathers, a regular consumer of the fizzy drink, sued the company for false advertising, arguing that after 10 years drinking Red Bull he neither had wings nor any enhanced athletic or intellectual performance.

Source: The Telegraph

Now, I love Red Bull. I drink it all the time, and I follow their marketing campaigns because they are brilliant, so I’m interested as a businessman, and because they’re fun, so I’m interested as a consumer. Red Bull sponsors events all over the world, including their very own “Flugtag” event, and they have their catchy, “Red Bull Gives You Wings” tag line. But, as a consumer, I never expected to be “given wings,” nor did I believe any of the other stuff the lawsuit claims, such as their assertion that Red Bull misled consumers into thinking that Red Bull was scientifically proven to be superior to its competition. No, I buy Red Bull because I like it, not because I am delusional.

The case was certified as a class action, with the class being every Red Bull consumer since 2002. Red Bull has decided to settle this case rather than fight (by giving every customer $10 of free Red Bull), which brings us to the real reason for this suit, of course: the lawyers are asking for a $4.75 million dollar fee. I’m disappointed that Red Bull didn’t fight this battle, but totally understand that it’s a “cheap” (comparatively) way to make them go away and almost acts as a promo in itself as people rush to get their free 4-pack.

Luckily, as a member of the settlement class, I get to express my disappointment to the court, and will be filing my objection to the Red Bull settlement on Monday. Will this actually change anything? Probably not on its own, but courts have been known to reduce fees when finalizing settlements on class actions, so I hope my objection will weigh on that.

Transcript of Oral Arguments from Corbett v. TSA on June 4th, 2014

In preparation for a petition for re-hearing en banc on the 11th Circuit’s decision that it’s too late to challenge TSA procedures that are still in effect today, I’ve transcribed the audio from my oral arguments back in June. The full transcript, as well as the audio, are provided below, but a few highlights:

First, a quote that sums up why I’m fighting this case:

Jon: One way invasiveness can be measured is based on how it makes the searched, in this case the public, feel. Do people feel demeaned, dehumanized, and violated when they’re forced to let the TSA manhandle their most intimate areas, and their families’ most intimate areas? I submit to the court that I can prove that they do, if I had an opportunity for fact finding.

Next, a TSA admission that the current, new scanners do create a nude image of your body, it’s just that no one sees them under ordinary circumstances…

Judge Martin (JBM): I understand that. Can the AIT technology work today without the privacy software, the ATR?
Sharon Swingle/DOJ (SS): No one at a checkpoint can see an image other than the automated image.
JBM: That wasn’t exactly my question. My question is, is it today possible to operate the AIT without the ATR software?
SS: The machines have the technological capability of displaying an image, but they cannot do so except in a very limited test mode

But, how often are machines accidentally in “test mode?” How often are the passwords to put a machine in “test mode” shared around? Does the TSA ever use “test mode” on travelers? The point is, if you think that it’s impossible that an image of your nude body can be seen through the newest scanners, as the TSA would like you to think, you’re mistaken.

Enjoy the light reading…

Corbett v. DHS – Oral Arguments Transcript (.pdf)
Corbett v. DHS – Oral Arguments Audio (.mp3, 49 MB)

Court of Appeals Rejects Nude Body Scanner Case in 2-1 Split

A matter of days after the TSA announced that its nude body scanners would be deployed as primary screening across the nation, I filed the first court challenge of the constitutionality of requiring Americans to walk through devices that visualize their nude body as a condition of flying. Since November 16th, 2010, I have vigorously and consistently maintained this objection to our government’s foolish behavior, as my case was bounced from court to court while we argued over which court should actually hear the case: the TSA argued that it should be in a court that had no discovery, witness stand, or even real trial (the U.S. Court of Appeals), while I argued that the constitution requires that my grievance be heard in a court that can offer meaningful review (such as the U.S. District Courts). It’s no surprise that by mid-2012, the lower courts decided that the court without discovery, witnesses, and trials should hear the case, due process be damned, and the U.S. Supreme Court declined to take up the issue.

With that matter settled, I continued my case in the court that they told me to file in, but now the TSA had a new objection to my case: that it’s too late now. You see, Congress wrote a law that says “orders” of the TSA must be challenged within 30 days, and the government interpreted this to mean that: 1) even if they keep doing the objectionable behavior (i.e. scanning and groping) daily, after they’ve done it for 60 days, it can never be challenged by anyone, and 2) the 60 days shouldn’t be from when I started my case, but from when I proceeded in the court that they preferred. I asked the court to refuse to adopt this absurd proposition and allow me an opportunity to gather and examine facts before the court.

In a 2-1 vote, the U.S. Court of Appeals for the Eleventh Circuit ruled last Friday that the government’s “60 days, forever immunized” theory is exactly right: the government, without violating your Constitutional right to redress, can create a law that says “once we do it for 60 days, it’s permanent, and we can keep doing it for the rest of eternity and you can’t take us to court!” They also went further and ruled that “even if Corbett had timely filed his petition,” the TSA’s nude body scanners and checkpoint molestations are constitutional — before they ever gave me a chance to ask the TSA for documents or meaningfully question their asserted facts.

In her dissent, U.S. Circuit Judge Beverly B. Martin blasts the majority for issuing the “unnecessary holding” that the TSA’s actions were constitutional, stating that there was no reason for the court to go there at this point since the majority decided it was too late to hear. She continues that “Mr. Corbett’s pursuit appears to me to have been methodical and diligent” and that she disagrees with the court’s decision to “penalize” me for the switch of courts in 2012.

Because there was a split between the judges, there is a higher chance now that the case will be accepted for review by either the full 11th Circuit or by the U.S. Supreme Court. I’ll be filing my petition to ask the full 11th Circuit to hear the case next week.

Corbett v. TSA – Petition Denied.pdf (.pdf)

[Correction - Original post listed the time limit as 30 days.  The statute sets the time at 60 days.]

TSA’s X-Ray Nude Body Scanners Output 50% More Radiation Than Admitted To By TSA?

Rapiscan Nude Body ScannerA few weeks ago, scientific researchers from top universities released a report confirming my 2012 demonstration that anything can be easily smuggled through the TSA’s nude body scanners. While this (again) made headlines all over the world, the media seemed to have missed one detail that the scientists noted at the end of their study as an addendum: they measured the radiation dose given by these machines and found it to be way higher than admitted.

People were rightly concerned about being dosed by x-rays as a condition of flying from the moment the TSA suggested using nude body scanners. You may recall that the TSA dismissed these concerns — their official line from the very beginning regarding radiation safety:

Backscatter technology projects an ionizing X-ray beam over the body surface at high speed. The reflection, or “backscatter,” of the beam is detected, digitized and displayed on a monitor. Each full body scan produces less than 10 microrem of emission, the equivalent to the exposure each person receives in about 2 minutes of airplane flight at altitude.

Source: Transportation Security Administration, Official Blog

“One full body scan” means one front and back scan, as the Rapiscan systems in use at the checkpoints did both the front and back of your body simultaneously, and the TSA assures us that “1 scan” will dose us with no more than 10 microrem of radiation.

Yet when these independent scientists from University of California at San Diego, the University of Michigan, and Johns Hopkins, who were not commissioned or endorsed by the government, ran the same tests, here’s what they found:

The average DDE per scan for all the dosimeters was calculated to be 73.8 nSv. The average SDE per scan was 70.6 nSv, and the average eye-lens dose per scan was 77.9 nSv.

Source: August 2014 Study, p. 16

Units are tricky with radiation because they are really small and change between “rem” and “sievert” (1 rem = 0.01 sievert), but the scientists are saying that 1 scan = 73.8 nanosievert = 0.0738 microsievert = 7.38 microrem. The TSA promised less than 10 microrem, so it sounds like the TSA was right… right?

Of course not. The scientists, unlike the TSA, did not measure front and back at the same time:

To irradiate them sufficiently, we performed 4033 consecutive single scans in the machine’s normal operating mode. (Each screening consists of at least two such scans: one front and one rear.)

Source: August 2014 Study, p. 16

This means that in order to get front and back, just like in a real TSA screening, we need to approximately double that number and get 14.76 microrem per screening, or about 50% more radiation than the TSA admitted to back in 2010 (or has admitted to ever). While these scientists still conclude that this is a low dose of radiation, it shows that, if correct, we were lied to, again, and anyone who walked through those scanners was given nearly 50% more radiation than they signed up for.

I asked the scientists from the study for comment before publication, and I received a reply from Keaton Mowery at University of California, San Diego, that noted that these kind of measurements have a large margin of error. Well, since these backscatter x-rays are decommissioned and sitting in a warehouse, perhaps it’s time that the government open them up to full scientific study so that we can all know what we were dosed with as a result of the government’s rush to deploy horrendously expensive security theatre that, as study has shown, actually make it easier to sneak weapons through than with an old-fashioned metal detector.

Mainstream Media Questions TSA Security

Jonathan Corbett appearing on Fox News

Fox News, fair and balanced jokes aside, is very much mainstream, and it’s a rare thing that we see questioning of the TSA by big media. And, despite the piece coming from an “Are you afraid that the TSA isn’t keeping us safe?” frame rather than an, “Are you afraid that your civil liberties are being flushed down the toilet in exchange for security theatre?” frame, it’s important that the message that TSA security simply doesn’t work reaches those who don’t seek out news beyond what they find on their television.

This morning, a 10 minute segment entitled Is the TSA capable of keeping America’s airports safe? aired featuring myself, security guru Bruce Schneier, and the researches whose study last week confirmed, for anyone with a doubt left in their mind, that the scanners can be beaten with only trivial planning. They also interviewed TSA Führer John Pistole (but asked no hard questions, such as, “You read that research study last week? Do you disagree?”). For those of you here who keep up with TSA news, you won’t find anything new, but hopefully the piece reached hundreds of thousands who otherwise had no idea.

TSA’s Document Reading, Detaining Travelers, & Lying to U.S. Supreme Court

While the 11th Circuit continues to consider my case against the nude body scanners, a different panel in the 11th Circuit has refused to reconsider — or even explain — why they allowed the TSA to get away with massive overreach and abuse in 2012 when airport screeners decided to read documents in my bags, hold me and threaten me with (false) arrest for refusing to let them “touch my junk,” and blatant and admitted lying in response to public records requests. My motion for rehearing and rehearing en banc (in front of all the judges instead of a 3 judge panel) was denied without fanfare, including a part of it that simply requested that the court explain part of their ruling.

And so, this case shall now continue to the U.S. Supreme Court. I have 90 days to file a petition to ask the high court to hear the case. The Supreme Court takes on something like 2% of the cases that it is asked to hear, but if you are with a civil rights or other organization who would be willing to file a “friend of the court” brief, you can increase our odds dramatically — get in touch. :)

Supreme Court petitions are expensive (printing, mailing, and filing fees alone are into 4 figures) — donations are always appreciated. (PayPal, Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT). I’ll also be doing a video exposé of what it’s like to ask the Supreme Court to hear a case, including their Freudian policy of immediately placing all new petitions in a garbage bag (yes, seriously!).

Scientists: Body Scanners Don’t Work, Corbett Was Right

From Wired:

Two years ago, a blogger named Jonathan Corbett published a YouTube video that seemed to show a facepalm-worthy vulnerability in the TSA’s Rapiscan full-body X-ray scanners: Because metal detected by the scanners appeared black in the images they created, he claimed that any passenger could hide a weapon on the side of his or her body to render it invisible against the scans’ black background. The TSA dismissed Corbett’s findings, and even called reporters to caution them not to cover his video.

Now a team of security researchers from the University of California at San Diego, the University of Michigan, and Johns Hopkins plans to reveal their own results from months of testing that same model of scanner. And not only did they find that Corbett’s weapon-hiding tactic worked; they also found that they could pull off a disturbing list of other possible tricks…

The study itself, published today, notes that, “In an incident widely reported in the press, Jonathan Corbett suggested that firearms hanging off the body might be invisible against the dark background [8], an attack we confirm and refine in Section 3.1.”

Well, isn’t that nice. :) Off to send a copy to the courts… [Edit: Done!]

Crossing Russia Off My Travel Plans: Thoughts on MH 17 and the Current Situation in Russia

I started my first lawsuit against the TSA almost 4 years ago because the TSA had infringed on something I love: the ability to get up, take yourself to an airport, and hours later end up anywhere in the world. Only perhaps 60 years ago was this feat impossible for the average person, and it is truly a gift that we can do so today. When the TSA conditioned that gift upon acceptance of government-sponsored sexual assault, I found it revolting and pushed back with everything I had.

Last week, for me at least, the ability to travel the world has shrank just a bit more. As best one can tell based on the evidence we’ve seen, rebels in the Ukraine armed and supported by Russia were provided with a surface-to-air missile system which they did not know how to use. While targeting what they thought was a military plane, these Russian-sponsored militants accidentally shot down a Boeing 777 passenger plane, killing nearly 300 innocent people from all over the world.

Russia is unapologetic, refusing to admit (while also failing to deny) that it provided the means to the people responsible for this tragedy. It has annexed a part of a sovereign nation, and stands ready to seize any opportunity to take over the remainder of the Ukraine (a possibility that now seems less likely due to the increased international attention brought upon Russia as a result of MH 17). And while I’m not happy about many of the things that are going on in my own government — from NSA spying to rampant police thuggery, a Congress that does nothing except when it is bought, and a President who thinks he is above the law (yes, the last president thought he was above the law, too) — the internal situation in Russia is heading from bad to worse. Reports of restrictions on free speech, criminalizing homosexuality, and violently silencing political opponents threaten to take Russia back to the olden days of Soviet oppression.

Sadly, I love Russian culture. I’ve been to Russia four times in the last 6 years (and the Ukraine several more), I’ve learned a good amount of the Russian language, made many Russian friends, and have absolutely loved my time in that country. But, the downing of MH 17 makes it impossible to ignore that Russia is not a safe place and that much of the leadership of Russia intends to do bad things to both their own countrymen and anyone who has anything that they want. With disappointment, I cross Russia off of the list of places I’m planning to travel until Russia decides to return to being a good citizen. I hope that as, one by one, people, companies, and countries stop doing business with Russia, they will eventually see that there is more to gain by being a contributor to the world than a taker.

Petition for Rehearing En Banc Filed

Last month, I posted that the Court of Appeals ruled in one of my cases that TSA screeners are free to read through the documents of travelers as they pass through the checkpoint, among a plethora of other rubber-stamping of government thuggery. I’ve asked the court to re-hear the case en banc, which means that all the judges of the 11th Circuit would consider the case, rather than just a 3-judge panel.

In this petition, I called it how it is, no sugar-coating:

Appellant has asked the Court to clearly delineate the boundaries of administrative searches – a warrantless, causeless, consentless mode of search – in the context of aviation security screening. Instead, the panel has given the government carte blanche to do nearly anything it pleases at an airport security checkpoint.

In particular, while every other circuit to address the issue has limited the scope of the U.S. Transportation Security Administration’s searches to that which is likely to find instrumentalities of destroying an airplane (i.e., weapons and explosives), the panel of this Court has bestowed upon the TSA the ability to search for anything the TSA can reasonably argue is suspicious, from literature that the TSA doesn’t like to credit cards in another person’s name. This novel approach does not comport with the Fourth Amendment and any valid precedent relating thereto.

I also took issue with the fact that the 3-judge panel affirmed the dismissal of two of my claims without any explanation, with merely a footnote that they agreed with the lower court:

The panel, however, dismissed these well-articulated claims in a footnote, stating tersely, “We agree with the district court’s cogent analysis of these claims.” Panel Opinion, p. 31, fn. 11. Respectfully, Appellant paid his filing fee to this Court, took the time to argue these claims, and complied with the Court’s rules throughout the proceedings. These claims are non-frivolous and, having presented what he believes to be at least a colorable argument in support of them, Appellant humbly requests that the Court take the time to address these claims in detail.

Petitions for re-hearing en banc are denied more often than they are heard, so it’s likely that a petition to the U.S. Supreme Court is coming soon. But first, let’s give the 11th Circuit a chance to correct itself.

Corbett v. TSA – En Banc Petition (.pdf)

11th Circuit: TSA May Read Your Documents At Checkpoints, Not Responsible for Assault by Its Screeners

Last week, the 11th Circuit heard oral arguments in my case against the nude body scanners and pat-downs, but in the meantime, the judges in my other TSA case, challenging whether officers may:

  1. Read through your personal documents at checkpoints
  2. Threaten travelers with false arrest and forcible search
  3. Conduct retaliatory searches that last for up to an hour
  4. Refuse to identify its screeners at checkpoints
  5. Lie about the existence of checkpoint videos in response to a FOIA request

…ruled that the TSA may indeed do all of the above. In its 32 page opinion, the court ruled that it’s perfectly reasonable for the TSA to read through your documents (maybe even digital documents) because it might prove that you have a fake ID, or it might provide additional suspicion if you have literature that the state doesn’t like. [Update:] I want to be clear that, perhaps most disturbingly of all of this, the court specifically ruled that the TSA may consider what you read as a basis for subjecting you to additional searches. Wrote the court on page 15, “a TSA screener could have reasonably factored the contents of a book possessed by a passenger into the totality of the circumstances relevant in determining whether the passenger presented a security threat.” And, the court left wide open the door for the TSA to now search electronic documents — your laptop, cell phone, iPad, etc.

The court ruled that TSA screeners are not “officers of the United States,” even though they call themselves “Transportation Security Officers,” and this distinction means that the government is not liable (and neither is the screener individually, of course) if they, say, punch you in the face, unlawfully invade your privacy, or cause emotional distress, so long as they are doing so in the course of their official duties. The court ruled that there’s nothing to be done about lying in FOIA responses, other than force them to not lie, which means the government now has every incentive to lie in the first instance. And the court ruled that the TSA can hide the names and faces (for example, from checkpoint security cameras) of its screeners. Quite simply, this opinion was a complete rout, save for a somewhat unusual note at the end that the defendants will have to pay their own costs in fighting the case (hey, at least I don’t have to pay the TSA to be told that they can do whatever they want).

This is an abomination. The court has given the TSA free reign to do, essentially, whatever it wants. I will be petitioning the 11th Circuit to re-hear this case en banc (in front of all the judges of the 11th Circuit instead of a 3-judge panel). If you are a part of a rights organization that would like to file an amicus brief, please contact me.


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