Petition for U.S. Supreme Court Review: Must TSA Screeners Limit Searches to Weapons, Or Can They Read Your Documents At the Checkpoint?

Today I filed with the U.S. Supreme Court a petition for certiorari — a request that the review the decision of the 11th Circuit Court of Appeals who declared that the TSA can lawfully search for anything they think is suspicious, including by reading your documents. The ruling from the 11th Circuit, which covers Florida, Georgia, and Alabama, is in direct contrast to the 9th Circuit, which covers most of the Pacific time zone, who ruled repeatedly, and as recently as 2007, that TSA searches must be “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and] confined in good faith to that purpose.”

Although I believe the above to be the most important issue I’ve raised, the petition also asks the court to take a look at numerous other questions, including whether TSA screeners are liable for assault and false arrest committed while on duty, whether they should reconsider their narrow interpretation that gutted the Privacy Act in 2012, and more.

The Supreme Court accepts an extraordinarily small portion of the cases presented to them. I hope they find review of a search that affects 2 million Americans daily to be worthy of their attention.

Corbett v. TSA – Petition for Certiorari (.pdf)

On This Four Year Anniversary, I’m Excited To Announce…

4th AnniversaryIt’s hard to believe that I’ve been working to roll back government abuse for 4 years, but today marks the anniversary of the filing of my first lawsuit against the TSA and the start of what now seems to be a lifetime passion for civil rights advocacy. With that in mind, to increase my efficacy as an advocate, I’m excited to announce that I am now officially a law student: Northwestern California University School of Law, Class of 2018.

California is one of the very few states to allow law school to be completed online, and NWCU’s 4-year, 100% distance learning law program will allow me to sit for the California bar and thereafter apply to the bars of most, if not all, other states. The tide is turning in favor of law degrees earned via Internet courses, with about a dozen schools offering all-online classes in California, William Mitchell in Minnesota offering a 50% online law degree, and many other schools across the country experimenting with putting at least a portion of their curriculum online. Law school will be a challenge: the time commitment is huge, the drop-out rate is high, and the bar pass rate is low, regardless of whether you attend an on-campus or online school. But if there’s anyone who can make this happen, I’m confident I can, and being able to do coursework while I travel makes this possible. I’ll be blogging about how things go, and today adding a new category, Law School, to the blog.

Tomorrow I’ll be announcing more exciting news, as my second petition for the U.S. Supreme Court’s review gets filed, and I share with you the amicus brief filed by a rights organization in favor of my petition for rehearing en banc before the 11th Circuit.

Just came back from the printers… ;)

Supreme Court Petitions

Petition for Full Eleventh Circuit to Hear TSA Nude Body Scanner Case Filed

Last month, I wrote that a divided 3-judge panel of the 11th Circuit voted 2-1 that my challenge to the TSA’s nude body scanners was too late to be heard, despite being the first person in the country to file a challenge after the TSA made the scanners primary screening, due to a law that requires challenges to TSA “orders” to be made within 60 days or be forever forfeited. I explained to the court why such a law must be found to be unconstitutional:

Let us examine a hypothetical situation: Congress passes a law that re-instates slavery, abrogates the right to vote for women, and requires school children to recite the Lord’s Prayer before each school day. At the same time, they pass another law that says that all challenges to the first law must be made within some timeframe – 24 hours, 1 week, 60 days, 1 year, or any other timeframe – of the law’s passing. President Obama signs this law. No one files a challenge before the deadline passes.

Do we now have legalized slavery? Have we ended suffrage? Has religious freedom been suspended? If someone comes to your door demanding, a day after the deadline has passed, that you pick their cotton, is it now “too late” to challenge whether or not you must oblige?

Petitions to re-hear a case en banc (in front of the full court) are rarely granted. But, I do hear that I have an amicus brief being filed in support of my petition — more on that soon. :)

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

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)

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