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


Donate to support the last remaining lawsuit against TSA body scanners!
PayPal or Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT

About tsaoutofourpants
I'm a 30 year old entrepreneur and frequent flyer who opposes visual and manual inspection of the private parts of our bodies! I hope you'll join me in my fight to have our rights restored!

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

  1. Reggie says:

    Thank you for your continued hard work on this. I’m so glad you’re using some of Jason’s first hand information, my only fear is that it will be ignored.

  2. RB says:

    Part 1c of the Administrative Record returns a 404. Trying to download 1a and 1b but so far not getting them. Either the file is humongous or my system is slow. Perhaps both.

  3. Tom says:

    “as the the TSA refused to provide an electronic copy” – that could be the beginning of another law suit against the TSA – not complying with the Paperwork Reduction Act (PRA): http://www.gpo.gov/fdsys/pkg/PLAW-104publ13/html/PLAW-104publ13.htm

    • They claim it’s because they don’t transmit sensitive documents over e-mail… even though the internal rules for FOUO explicitly allow e-mail transfer, and even though a CD would have been much cheaper and easier to send. I’m pretty sure they just wanted to make it hard for me to use (no full text search) and share (scanning took well over 10 hours of work).

  4. RB says:

    I have a very reliable report that at LAS earlier this month TSA was using only WTMD for passenger screening. That was for everyone, not just Pre Check people. What I don’t know is how long this lasted but it did happen when a friend of mine went through security there.

    Shoes on, belts on, wallets in pocket, and he even had his keys in his pocket.

    A procedures test or some kind of equipment outage but TSA was not using Strip Search Machines at least for some period of time.

    If these Strip Search Machines are so damn critical then why would TSA screen anyone by any other means? And doesn’t the pressing need to be able to find non-metallic explosives clearly contradict the very existence of the TSA Pre-Check program?

  5. Jill says:

    Excellent work. Thank you for taking a stand!

  6. joe says:

    Rebuke Over No-Fly List Fully Unsealed, but Mysteries Remain:

    An eight-year fight over a Stanford graduate student’s mysterious inclusion on various terror watch lists ended Wednesday with the revelation she has been off the no-fly list since 2005.

    The disclosure comes in the fully unsealed 38-page opinion by U.S. District Judge William Alsup, which he issued in January and then partly released – with heavy redactions – a month later while the Justice Department mulled over whether to appeal Dr. Rahinah Ibrahim’s case to the 9th Circuit.

    Ibrahim’s pro bono attorneys at McManus Faulkner said that the government typically needs “articulable facts” to put someone on the terror database, but that Ibrahim’s case revealed that the executive branch “has created at least one secret exception to the reasonable suspicion standard to watchlist innocent individuals.”

    “For the executive branch to create secret law, not subject to any legislative or judicial review, runs afoul of everything our founders envisioned for this country,” Ibrahim’s lead attorney Elizabeth Pipkin said in a statement. “Quite simply, secret laws have no place in a democratic society.”

    READ MORE:

    http://www.courthousenews.com/2014/04/17/67142.htm

  7. joe says:

    US Has A ‘Secret Exception’ To Reasonable Suspicion For Putting People On The No Fly List:

    The court finally released the unredacted version, and we’ll have a few things to say about the choice of redactions in a later post. But first, there were three main “reveals” from the newly unredacted version. The first is that Ibrahim was actually put on multiple lists by mistake (and never for any clear reason) and was actually dropped from the no fly list years ago (though the other lists created the same effective problem in barring her from being allowed to travel to the US). The second is that the US government has a “secret exception” to the requirement that there be “reasonable suspicion” to put someone in various terrorist databases, and that secret exception was later used on Ibrahim. And third, that despite the implications from the redacted versions, the fully unredacted ruling shows that Ibrahim is still likely blocked from coming to the US for separate undisclosed reasons, even though the government fully admits that she is no threat. All of these things were hidden by the redacted version.

    READ MORE:

    http://www.techdirt.com/articles/20140417/17265226950/us-has-secret-exception-to-reasonable-suspicion-putting-people-no-fly-list.shtml

  8. joe says:

    Quarrel Over Fees Begins in TSA Terror Watch List Case:

    Attorneys who challenged the inclusion of a former Stanford graduate student on various terror watch lists asked a federal judge to have the U.S. government pay them nearly $4 million for continued “evidence of bad faith.”

    In a modern-day version of David taking on Goliath, Rahinah Ibrahim successfully fought a mistake by an FBI agent that landed her on a terrorist database and the Transportation Security Administration’s no-fly list, and got her booted out of the United States in 2005.

    Her pro bono lawyers with McManis Faulkner requested $3.9 million in attorneys’ fees and expenses related to the eight-year case, U.S. District Judge William Alsup admonished those lawyers Wednesday for violating local court rules by not meeting with the government to hash out the attorney fees issue first.

    READ MORE:

    http://www.courthousenews.com/2014/04/18/67179.htm

  9. joe says:

    (VIDEO: TSA pat down 2 & 6 year olds:

    • Tom says:

      What do those people think when they do that? Do they honestly feel that they are protecting the American people from terror by molesting and scaring kids? Or are they “just following orders”? Hint, in the Nuremberg Trials after WWII, Nazi soldiers tried to use this “I was just following orders” excuse but it did not save them from punishment for illegal actions. Watch out TSA soldiers, your day will come too.

  10. joe says:

    Woman denied access to U.S. because ‘the name on her passport sounds like Al Qaeda’

    http://www.dailymail.co.uk/news/article-2614020/French-mother-33-denied-access-United-States-sounds-like-Al-Qaeda.html

  11. joe says:

    DHS the largest law enforcement agency in the country is only getting worse:

    http://massprivatei.blogspot.com/2014/04/dhs-largest-law-enforcement-agency-in.html

  12. joe says:

    Please Disengage You Brain Before Applying For a Job in Airport Security: It’s For Your Own safety

    http://www.infowars.com/please-disengage-you-brain-before-applying-for-a-job-in-airport-security-its-for-your-own-safety/

  13. joe says:

    Senator Blasts TSA: Fast Food Joints Do Better Employee Background Checks

    The TSA has an annual budget of over SEVEN BILLION DOLLARS, yet this is not enough to do proper background checks on it’s employees, according to agency head John Pistole.

    Appearing before the Senate Committee on Commerce, Science and Transportation this week, Pistole faced a grilling from Senators over the Administration’s dodgy employee track record, and its ability to keep Americans safe.

    “DHS (Department of Homeland Security) officials have told us that job applicants in the fast-food industry typically undergo a more robust background check than applicants for a TWIC card,” said Senator Mark Warner, referring to the TSA-issued Transportation Worker Identity Credential.

    Warner, a Virginia Democrat, cited a case involving a truck driver who used his TWIC to gain entry into a Naval Station in Norfolk, Virginia last month where he shot a Navy security officer dead. The shooter, Jeffrey T. Savage, has a violent criminal history, including a previous manslaughter conviction.

    Astoundingly, he was able to clear the TSA’s screening process. Once a person is initially cleared, the system is only updated if cleared personnel self-report any additional criminal incidents, something violent criminals tend not to do.

    http://www.commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=1af998fd-56eb-44c1-8371-3a16eb0cc8b0

  14. joe says:

    Senator Boxer Presses TSA Administrator on Security Breach at San Jose International Airport

  15. joe says:

    Congressman Eric Swalwell calls for pilot study of new airport security technology

    http://www.mercurynews.com/business/ci_25685115/congressman-calls-pilot-study-new-airport-security-technology

  16. joe says:

    Georgia GOP candidate: ‘I’d rather see another terrorist attack’ than submit to ‘jack boot’ TSA:

    He criticized the TSA for “indoctrinating generations of Americans to walk through a line and be prodded and probed by uniform personnel, agents of the government, like sheep.”

    http://www.politico.com/story/2014/05/bob-johnson-georgia-tsa-106393.html#ixzz30xZigY1D

  17. joe says:

    TSA Expands Quick Screening Program To International Airlines:

    http://www.huffingtonpost.com/2014/04/29/tsa-precheck_n_5233114.html

  18. joe says:

    Derailment Bingo: TSA Abuse Edition

    TSA News has created a derailment bingo card you can use at home. The handy chart helps you enjoy comments from various boards on the internet without wanting to kick something.

    http://www.lossofprivacy.com/wp-content/uploads/2014/05/Derailment-Bingo.pdf

  19. joe says:

    Texas lawmaker Beto O’Rourke alleges wasteful spending by DHS/TSA at border

    http://www.brownsvilleherald.com/news/local/article_2afcc190-d661-11e3-85aa-0017a43b2370.html

  20. joe says:

    Expensive TSA Nude Scanners Find A New Home: Prisons

    Where are those nudie scanners now that they’re being transitioned out of airports? Why, they’re in prisons of course, because piling them up on the federal curb would make them look stupid.

    http://www.techdirt.com/articles/20140520/08421227293/expensive-tsa-nudie-scanners-find-new-home-prisons.shtml

  21. MacKenzie says:

    Thank you so much for your continued work on this. I feel nothing short of amazed at your perseverance and effort toward the most crucial civil liberties issue of our time. I am praying for you and back you up completely.

  22. joe says:

    How Many Terrorists Are There: Not As Many As You Might Think:

    John Pistole at the TSA excuses his agency’s sexual assaults of passengers by incoherently intoning, “The reason we are doing these types of pat downs and using the advanced imagery technology is trying to take the latest intelligence and how we know al Qaeda and affiliates want to hurt us, they want to bring down whether it is passenger air craft or cargo aircraft.”

    It would seem that terrorism runs rampant, as the Feds remind us with each new infringement of our freedom. Which means there must be millions of terrorists out there, right?

    Nope. The same government that spends trillions of our dollars and sacrifices our few remaining rights fighting terrorists also publishes a census of sorts on them – though apparently the Feds don’t read it. Country Reports on Terrorism appears annually courtesy of the US Department of State. And each year, it explodes the myth that jihadists lurk on every airport’s concourse. In fact, bureaucrats at just one of the agencies supposedly battling them, the Department of Homeland Security, far outnumber them.

    READ MORE:

    http://www.techdirt.com/articles/20140506/14033627137/how-many-terrorists-are-there-not-as-many-as-you-might-think.shtml

  23. joe says:

    Judge allows TSA to keep $138,121 seized at MN airport because it smelled like weed:

    Someone had tipped off federal agents that a California man with a large quantity of drug money would soon be boarding a flight from Minnesota to Arizona. They spotted him at gate H-7 in the Humphrey Terminal of Minneapolis-St. Paul International and let loose a “certified narcotics dog.” The dog showed strong olfactory interest in two of the man’s three pieces of luggage. So the feds seized those two bags and let the man get on the plane to Phoenix.

    They knew what they might find in the two bags because the man had already told them that he had a large quantity of cash from his bingo business. The feds found no drugs, but $138,121 that – literally – smelled like marijuana, according to court records.

    http://www.startribune.com/local/blogs/261012881.html

  24. JONATHAN CORBETT for President. What a coincidence. Mr. Corbett lives right around the corner from me in the Miami Gardens area. Listen people, we must keep our civil liberties in this country. The sad news is that the TSA system has started to spread to other places like our courthouses and government buildings. I am an attorney and things got so bad at the Miami courthouse that the lady would touch my breast every time and then try to deny it. I had so many arguments with the building officials there. After I prayed about it, they changed the system to allow attorneys to enter without going through the X-ray line. That was good for me, but I still cringe every time I pass by and watch the general public be sexually harassed and molested. I honestly have not flown since the body scanners were put in airports because I wanted to avoid the assault. I figured I would wait for officials to come to their senses before I flew again. I have heard about the TSA’s “Pre-check program”, but the TSA website conveniently says nothing about whether it allows you to bypass the scanners. Does anybody know the answer to this question? It’s time to dismantle body scanners and invasive pat downs. Let us rely on the Lord for our security and protection.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 388 other followers

%d bloggers like this: