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.

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!]

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, 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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