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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Oral Arguments in Court of Appeals: Court Concerned It May Be Too Late To Consider TSA Scope & Grope

Jonathan Corbett Ready for Oral Arguments Oral arguments took place yesterday in front of a 3-judge panel of the 11th Circuit Court of Appeals in my case challenging the constitutionality of subjecting all air travelers to machines that image every inch of their body and pat-downs that literally put the TSA’s hands in your pants. The pressing issue on the judges’ minds: Can the court even hear this case?

That’s the question every court has given me so far. First I filed in the U.S. District Court for the Southern District of Florida, my home district, where typically a civil action challenging constitutionality of government assholery would start. But, the TSA argued that I’m challenging a written TSA policy (an “order”), not an individual instance of a search, and Congress made a special law that sends those challenges to the Court of Appeals. But that law also says that challenges must be made within 60 days of the policy’s issuance unless “reasonable grounds” exist.

If the Court doesn’t find “reasonable grounds,” it will mean that if I get searched tomorrow and want to challenge the constitutionality of that search, it will already be too late to challenge it, because the time limit to challenge it starts not on the date you were abused, but on the date the government declared it would abuse you. This would be a disgusting abrogation of the Bill of Rights, essentially allowing the government to put us on notice that they want to take away any one of our constitutional rights and, should we not speak up within 60 days (what if the law said 3 days? or 24 hours?), those rights are permanently gone. I do hope the panel doesn’t go in that direction.

While I worry that the judges may rule that constitutional rights can be time limited, they did ask some tough questions of the government. Many times throughout the government’s arguments did a judge ask a question and the government’s attorney attempted to evade the question — but the judges would have none of it. I appreciate the firmness of the court in requiring the government to directly answer questions about the consequences of accepting its perverse arguments.

Audio from the oral arguments is a public record and I’m sending my request for it today — will post it here once I receive it.

Corbett v. TSA: One Month Until Oral Arguments

The first filed and last remaining challenge to the constitutionality of the TSA’s goes to oral arguments on June 4th, 2014 at 10:00 AM in Miami, FL. On that day, I will need to persuade 3 federal judges that using a machine that can see every inch of our bodies without any suspicion whatsoever and when effective alternatives exist is a violation of our Fourth Amendment rights.

There is no doubt: this is an uphill battle. Just a couple weeks ago, U.S. Supreme Court justice Antonin Scalia said in an interview that it is “foolish” to have the courts strike down the executive’s decisions on anti-terrorism measures because the courts don’t have enough information to decide if that’s safe. We live in a world where those in government, I think, truly believe that if we don’t give the executive free reign to fight the war on terror, civil rights be damned, we are all going to die. A world where critical thinking is prohibited because the government must know better, and us mere mortals (“civilians”) are not equipped to scrutinize the means by which the government “keeps us safe.”

I will attempt to persuade the courts that they must complete their constitutional duty of making sure that the laws of Congress and acts of the executive do not trample the limitations clearly enumerated in the Bill of Rights. That they must look deeper into what the government is doing rather than giving infinite deference, and if the courts feel they don’t have enough information, they must seek out the truth. For if we have a court system that will forego seeking the truth because it would be difficult, inconvenient, or time-consuming, we are entirely lost.

I invite you to join me in Miami on the 4th. It is possible that the court will close the courtroom for some of the proceedings (wouldn’t want secrets like the fact that the body scanners don’t actually work leaking out to the public!), but I will advocate for keeping as much of the proceedings open to the public as possible.

The Full Case Against TSA Scope & Grope: Why The Nude Body Scanners and Pat-Downs Are Unconstitutional

My case in the United States Court of Appeals for the Eleventh Circuit, challenging the constitutionality of the TSA’s nude body scanner program and invasive pat-downs, is now fully briefed, redacted as required by the court, and ready for sharing with you all. This includes over a hundred pages of briefing, over 4,000 pages of the “administrative record” (a collection of internal TSA documents allegedly that formed the basis of their decision to molest the public), exhibits, declarations, and more. The administrative record I had to scan by hand, all 4,000 pages, as the TSA refused to provide an electronic copy. Perhaps they thought that I wouldn’t bother. ;)

Some pages are redacted, and some are missing. Redacted pages were deemed “Law Enforcement Sensitive,” or “Sensitive Security Information,” and I have access to unredacted versions of neither at this time. The court may later decide that the TSA must give me more information. Missing pages are “For Official Use Only” or classified documents. The government has provided me copies of the FOUO documents that I am barred from releasing (but has been so kind as to give me permission to publicly post the indicies of the documents), but so far has refused to provide an index or a non-classified summary of the classified documents.

The Briefs

  • Appellant’s Brief – This is my argument as to why the programs are unconstitutional. The court accidentally leaked an unredacted copy, which was picked up by the media. This is the copy linked to here — I am under court order not to discuss the leaked contents any further, but I am specifically not barred from linking to it.
  • Appellee’s Brief – This is the TSA’s argument as to why it’s totally acceptable for airport security screeners, to use, without suspicion, virtual strip search machines and manual touching of your genitals with their hands in the name of security. Only lightly redacted.
  • Reply Brief – My rebuttal to the TSA’s brief. The brief had 3 exhibits: Exhibit A is sealed, and Exhibit B and Exhibit C are the work of Jason Harrington, the former TSA screener who is dedicating significant time to exposing TSA assholery, including his popular op-ed, I Saw You Naked. Jason was nice enough to submit a declaration to the court regarding the nude body scanners being absolute failures.

The Administrative Record

This 4,000 pages of government paper is divided into 5 parts (warning – these .pdf files are large… up to 200 MB each!):

  • Part 1 – Unclassified Documents (Index, 1A, 1B, 1C). These are documents that are entirely “public,” as in, you could have requested them from the government under FOIA, but some of them have never before been published on the Internet. If you’ve ever commented on blog.tsa.gov, you may find your name in there!
  • Part 2 – Copyrighted & Proprietary Documents (Index). I’ve been ordered not to release these documents at this time, but note that most of them are research papers that you can find by using the search engine of your choice. Check the titles in the index.
  • Part 3 – For Official Use Only (FOUO) Documents (Index). I’ve been ordered not to release these documents at this time. Part 3 is a pair of threat assessments compiled by the TSA, and while I can’t share them with you, I did write about the juicy parts in the leaked Appellant’s Brief that I linked to above.
  • Supplement to Parts 2 & 3 (Index). I guess they found more. Just like 2 and 3, these docs are sealed, so just the index here.
  • Part 4 – Sensitive Security Information (SSI) Documents (Index, 4A, 4B, 4C, 4D). These documents are redacted (some very heavily), and I’ve not been provided the unredacted version. But, the redacted version is not sealed, so here it is.
  • Part 5 – Classified Documents. I’ve been told nothing about classified documents. I don’t even know how many pages there are. I’ve asked the court to order the TSA to provide redacted versions or to provide non-redacted summaries, and the court has decided to carry that issue with the case. Presumably, if the court orders the release of additional documents, I’ll be allowed an opportunity to submit supplemental briefing.

So what’s next? Oral arguments are scheduled for June 4th, 2014, in Miami. The government has asked the court to change its mind about having oral arguments because it fears the disclosure of sensitive information. The court has given no indication that it plans to change its mind. After June 4th, the court can rule at any time (likely not for months, though), or it may release more documents and request additional briefing before it rules.

Finally, this is what 4,000 pages of TSA nonsense looks like, before and after prepping it to be recycled into something, hopefully, more useful than printouts of excuses to justify large-scale sexual assault:

TSA Trash

TSA Trash


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Update: NYPD Accepts Coins

A few weeks ago, I mailed the NYPD over $800 in coins to cover some court costs. Initially, it seemed that they refused the shipment, but I just received a check from the NYC Law Department for $8.05, presumably a refund from putting a few too many coins in the box (I got a little excited). Pleasure doing business, po-po! :)

No-Fly List Conclusion: Government Declines to Appeal, Full Order To Be Released (?)

If you’ve been following, I’ve been covering the case of Rahinah Ibrahim, the university professor who was accidentally placed on the no-fly list — which came with a whole host of other issues — because an FBI agent accidentally checked the wrong box. This woman was forced to go to court to correct this obvious mistake, because either the government was embarrassed or, perhaps, simply doesn’t care.

The case was a circus, with the government attempting to protect her inclusion on the list as a “state secret,” in addition to being classified. This argument was sternly rebuked by the judge. The government also blocked a witness for the plaintiff from entering the country. The judge’s ruling on that is largely redacted. In the end, the judge ruled in favor of Dr. Ibrahim and ordered that she be removed from any lists she found herself on as a result of the FBI’s error.

The government’s time frame to file an appeal has now expired, and so Dr. Ibrahim’s case is finally over. It has now been demonstrated that there is a right to due process with the no-fly list, and the government cannot simply take away your right to travel and say, “sorry, that’s a secret.” Those redactions may also be short-lived, and we may get a fuller story soon, as the judge found that his ruling should not be redacted and agreed to keep his conclusions a partial secret only pending appeal. It will be exciting to have the final pieces of this story laid out.

Is The TSA Finally Starting To Do Something Right?

Bomb-Sniffing Dogs Greetings from SXSW week in Austin, TX, where at the local airport I passed through security without taking my shoes off, removing my laptop from my bag, being groped, or having my nude body imaged using radiation. A sign indicated that bomb-sniffing dogs may be in use. Imagine that!

The first part of that was thanks to the TSA involuntarily giving me Pre-Check status. The result of having Pre-Check is that you’re treated like a normal person — like airport security used to treat people pre-9/11 — instead of like a terrorist. My only criticism is that it shouldn’t take paying money, submitting to background checks, or suing the government into submission in order to be treated like a person rather than a terrorist. The TSA seems to be rapidly expanding who it includes in Pre-Check, and perhaps will eventually include most of us. But, that still will leave, as per usual, foreign tourists, the poor (who fly infrequently and have more limited interaction with the government), and others who have no voice to protest the government in a situation where they are subject to the peak of TSA assholery circa 2011.

The last part of my walk through security — that notice about bomb-sniffing dogs — is much more promising than the government keeping a naughty-or-nice list of who gets groped and who doesn’t. I have been advocating for the TSA to use alternative (to scope & grope) technologies for the detection of non-metallic explosives for years now, and it seems that, perhaps, they are finally catching on to the fact that these alternatives are more effective, less invasive, and less intrusive — meaning there’s no reason not to use them. The TSA has continuously stonewalled in courts of law and the court of public opinion as to why they persist on using the scanners, stating that they know best and their considered national security decisions shouldn’t be second-guessed by the plebs, but providing zero evidence to back that up. I am thoroughly convinced that the evidence supporting the body scanners over the alternatives is not some sort of secret, but rather is entirely non-existent.

When the TSA does something right, it should be recognized, and so a rare thank you from me to the TSA for slowly taking small steps in the right direction. Please continue to expand Pre-Check to everyone who participates in the Secure Flight program (if you give your gender and date of birth when making a reservation, that’s you) unless there is a specific concern about an individual, and allow redress for those denied access to “normal person” screening. Most importantly, continue with the K-9 crews, as they provide meaningful, unobtrusive protection against explosives on airplanes.

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