It’s a little TOO quiet…

It’s now been a full month since I’ve seen the familiar “Activity in Case…” e-mails that the federal court system sends to litigants registered for electronic filing. Considering I have four cases open in four different courts, it’s the first time I’ve had a month of quiet since 2011. This gives me a little time to write my comment for the TSA’s public rulemaking regarding nude body scanners (due by June 24th, 2013 — no legal experience required, just let the TSA know how you feel!) and my appeal that is inevitable regarding (in largest part) U.S. District Judge Joan A. Lenard’s decision that TSA screeners enjoy qualified immunity for unlawful searches even when they know they intentionally continue their search beyond what is necessary to find weapons.

So, here’s where we are right now:

• 12-15893, Corbett v. DHS, U.S. Court of Appeals for the 11th Circuit
  Re: Constitutionality of Nude Body Scanners & Enhanced Pat-Downs
  Currently pending a ruling on how much of the administrative record the TSA may hide from the public, as well as whether the court will appoint a “special master” (essentially, a discovery judge) to gather facts
• 12-CV-20863, Corbett v. TSA, U.S. District Court, Southern District of Florida
  Re: Detention, Retaliatory Search, Threats of (False) Arrest, and Lying in Public Records Responses After Refusal to be Scanned
  Currently pending a ruling on the lying, all other charges dismissed on immunity grounds (to be appealed once the pending ruling is issued)
• 11-CV-3549, Corbett v. City of New York, U.S. District Court, Eastern District of New York
  Re: Unlawful Stop & Frisk
  Currently pending a ruling on whether the case may proceed even though the city “can’t find” the police officers who detained me
• 13-CV-602, Corbett v. City of New York, U.S. District Court, Southern District of New York
  Re: Constitutionality of “Street Body Scanners”
  Currently pending a ruling on standing (whether I can bring the suit now or have to wait until the NYPD actually starts using the scanners)

I have this sneaking suspicion that I will shortly be innundated with rulings and legal documents to write. The calm before the storm…

U.S. Attorney Discusses TSA Case with Judges — Without Informing Other Side

My petition to review the constitutionality of the TSA’s nude body scanner programs is presently before three judges of the Eleventh Circuit Court of Appeals, who are trying to figure out how much information the TSA can refuse to provide to me (or require me to keep secret), some of which is clearly non-disclosable (classified information) and others of which are laughable (copyrighted documents, documents stamped “For Official Use Only” — a designation invented by the TSA with no legal significance, etc.).

I received notice today that the government has filed these documents under seal (meaning not publicly) and ex parte (meaning I don’t get a copy) “at the request of the Court.” But, I’ve never seen that request. I’ve never been a party to — or even aware of — discussions where the Court woud have made such a request.

If the Court is going to insist on secret filings, it could at least be up front about it.

Corbett v. DHS – Notice of Lodging (.pdf)

Texas Debates Anti-TSA Bill, Asks Me to Testify

Today, the House of Representatives of the State of Texas debates H.B. 80 (information, full text), a bill to amend their official oppression statute to criminalize requiring genital touching (even through clothes), as well as the separation of parent and child, during security searches incident to transportation. The bill was introduced by Rep. David Simpson, who invited me to testify on the matter.

While I wasn’t able to make it in person, as I got less than 24 hours notice of the hearing, I put together 10 pages of written testimony that highlights the current problems with the TSA and the solutions offered by H.B. 80. H.B. 80 is more well-crafted than predecessors in the Texas legislature that two years ago prompted the TSA to threaten to declare Texas a “no-fly zone,” including text limiting the scope and declaring severability of the clauses.

It’s important that we support efforts like this, because even if the federal government thwarts the legal effect, they cannot thwart the attention that such measures bring to its abuse. If you live in Texas, contact your representative and let them know you support H.B. 80. Likewise, if you know someone who lives in Texas, please pass the message along.

Testimony of Jonathan Corbett, Texas House of Representaves, April 10th, 2013 (.pdf)

Eleventh Circuit: “Zero Fucks Given.”

Today the Eleventh Circuit Court of Appeals, in considering my case against the constitutionality of the body scanners, denied my motion to transfer, motion to stay the use of body scanners during the petition, and even denied my motion to file electronically — a routine motion that allows a non-lawyer to use the court’s e-filing system, as 3 other federal courts have for me already.

Their reason? Why, they didn’t say.

The court denied all three motions together in a 1 page order that offers no insight at all into their decision.

Perhaps the court thought it would be obvious as to why they denied a motion implicating fundamental constitutional due process rights that required 74 pages of briefs, plus exhibits, from the government and myself. Or perhaps, as I more suspect, the just don’t give a fuck. Just as the U.S. Supreme Court also didn’t care about whether the nude body scanners ever went to trial.

At some point, it gets frustrating when you’ve followed all the rules and still, now 2.5 years and several hundred pages of legal writing later, your issues aren’t even close to being given a fair hearing. My next step is to ask the judges to explain themselves. Should they fail to work out a solution, they will essentially hear my case solely on the evidence as presented by the government — an utter miscarriage of justice.

Corbett v. DHS – Summary Denial of Motions (.pdf)

Fully Briefed: Would Releasing Videos of TSA Screeners at Checkpoints Violate Their Privacy?

Although the question of whether a TSA screener can detain travelers at checkpoints will be decided at a later day by the Eleventh Circuit Court of Appeals, earlier this week I filed the final brief before U.S. District Judge Joan A. Lenard decides the following questions:

1. Would releasing videos that show the faces of TSA screeners while working at checkpoints violate their privacy?
2. Would releasing the names of those screeners violate their privacy?
3. Can a government entity lie, in response to a Freedom of Information Act request, about the existence of a record deemed to be Sensitive Security Information?

Question 1, I think, borders on the absurd.  The idea that a bunch of public servants working in a public place have some sort of right to privacy sufficient to hide any video taken of them is absurd, especially in light of the fact that us “normal citizens” have no such reasonable expectation when we walk around in public.

Question 2 measures only marginally lower on the absurdity scale.  TSA screeners wear name tags and ID badges when working at the checkpoint.   Somehow, the identity of TSA screeners is public while they’re working, but if an incident happens, all the sudden, that information is now private.  Do we have a right to know who we, the taxpayers, have hired to work for us?  Would release of this information increase accountability to the public?

Question 3 also deals with accountability: if the government is allowed to lie about having “secret” records, it can mark any record as “secret” and the public would have no way to challenge that because we’d have no way to prove that a record existed in the first place.  If revealing the existence (or non-existence) of a document would truly harm national security, this is precisely the situation for which a Glomar denial (“we can neither confirm nor deny…”) was invented.  Instead, Broward County chose to lie, and then to double down by defending that lie through summary judgment.

So far, this particular judge has not looked too favorably on my case.  She dismissed 19 out of 21 counts so far (those involving the illegal search and seizure itself), denied a motion for reconsideration without explanation and analysis, and ignored a motion to begin the appeal of the 19 dismissed counts while the 2 remaining counts are pending.  The 19 dismissed counts will make it to the appeals court sooner or later regardless, but for the remaining counts, I am still optimistic that the law is clearly on my side and Judge Lenard will rule in my favor.  There is no time-table for her ruling, but since I don’t feel like she particularly wants my case in her courtroom, I expect that she’ll rule fairly quickly — within a month.

Corbett v. TSA – Motion for Summary Judgment (TSA) (.pdf) (3 MB)
Corbett v. TSA – Motion for Summary Judgment (Broward) (.pdf)

Corbett v. TSA – Opposition to Defendants’ Motions and Cross-Motion for Summary Judgment (Jon) (.pdf)

Corbett v. TSA – Reply & Cross-Motion Opposition (TSA) (.pdf)
Corbett v. TSA – Reply & Cross-Motion Opposition (Broward) (.pdf)

Corbett v. TSA – Reply to TSA’s Opposition (Jon) (.pdf)
Corbett v. TSA – Reply to Broward’s Opposition (Jon) (.pdf)

Delta CEO <3s TSA, Warns of Pocket Knife Terror

The TSA recently decided to relax its rules regarding small (6 cm or smaller) pocket knives, allowing them to be taken past security and into the airplane cabin. After this fleeting moment of common sense from the TSA (as post-9/11, no terrorist would even think of taking on a cabin full of Americans armed only with 2″ knives), Delta CEO Richard Anderson begged TSA Administrator John Pistole to reconsider, in a love letter addressing both parties by first name and gushing that Delta “will always be good partners with the TSA.”

It is truly unclear to me why those in the industry feel the need to ass-kiss with the TSA at all times. They can’t possibly think that the TSA is an effective, well-run organization. Do they fear retribution if they speak out? Or is it simply that they enjoy having a third party take the responsibility (and blame) for aviation security?

Delta, unfortunately, is not the only people who oppose the policy change. Useful idiots on both sides in Congress, such as Chuck Schumer on the left and John McCain on the right, flight attendants and pilots, and Jon “The Skies Are Falling” Adler of the Federal Law Enforcement Officers Association, who cries, with trembling voice and while holding his mommy’s hand, that “if [the new policy] isn’t changed, say a prayer, rub a rabbit’s foot, and get ready to fly the deadly American skies.”

Most of the opposition talks about generic “safety” in the skies, avoiding the unjustifiable proposition that a pocket knife would make the difference between success and failure of a terrorist attack. But, what does this mean? Safety of flight attendants? That of other passengers? If so, then we might as well ban knives on buses, in McDonald’s, and everywhere else, since the people there are just as deserving of safety via governmnet-imposed weapons searches as FAs and airline passengers. The “anything to keep us safer” crowd strikes again, this time taking things even farther than the TSA (perhaps because knife detection doesn’t give the TSA an excuse to buy shiny new toys like nude body scanners).

You may have never expected to read this on this blog, but TSA Out of Our Pants fully supports this change in TSA policy.

One Year Later, State of the TSA

One year ago, I published my video exposing the TSA’s nude body scanners as vulnerable to an extraordinarily simple attack: any metal objects placed on the side of the body are invisible. The TSA mocked, then threatened, then downplayed, but never denied that the $1B of our tax dollars spent on the most invasive search ever directed at the general public in the history of our nation is great at finding TSA screeners with small genitalia but utterly useless against fighting serious threats to aviation security.

Before I published my video, I said to my friends, “This is it — this is the end of the body scanners!” I believed that if the vulnerability I published was publicly exposed, the TSA would be forced to remove the machines. Anyone can use the technique to bring even a firearm through security completely undetected so the TSA would have to get rid of them, I thought. Yet one year later, the scanners are still here (and yes, I tested the exploit on one of the new millimeter wave scanners with ATD, the kind that swirl around your body and “create a [fake] 3-D image”). The TSA is too proud to return to metal detectors and admit that it wasted your money and invaded your privacy for nothing… even if that pride means we are significantly less safe when we fly.

We’ve seen some changes over the last year. We’ve seen one of the two types of scanners removed — the Rapiscan backscatter x-ray devices — and the other upgraded to include “automated threat detection” so that live people (supposedly) never see your nude body. This is a huge win, not only for privacy advocates but for those concerned about being dosed with ionizing radiation by their government. We’ve seen the TSA shrink back from threats of fines and jail for those who don’t want to allow the TSA to “touch their junk” (new non-public policy is simply to ask you to leave). We’re also seeing that court battles, after being tossed over questionable technicalities that the U.S. Supreme Court refused to address, are finally moving towards being heard.

We still have more work to do. The privacy violation, in the form of having every square inch of our bodies analyzed without cause (resulting in countless drug charges but zero terrorism charges), still exists. TSA assholery, from strip searching grannies, to stealing iPads, to traumatizing rape survivors, to making kids cry just for fun, to collaborating with airports to lie in Freedom of Information Act responses, still exists. But we’re getting somewhere, slow as it may be. If you’ve donated, shared links with your friends, or simply opted-out, thank you for your help.

TSA Accidentally Publishes Copy of My Drivers’ License in Brief About Privacy

I realized after I made my last post that the TSA, in its brief explaining why its employees deserve privacy in the form of having their names and faces redacted from any documents it releases, accidentally (I would assume) published a copy of my drivers’ license!

While not the cleareset image in the world, in the version you can download from the court, you can zoom in well enough to get most of my name, most of my drivers’ license number, and my date of birth (a violation of Fed. R. Civ. P. Rule 5.2(a)(2)). I’m leaving it up on the blog because I’m always happy to trade a little of my privacy for the sake of exposing the hypocritical foolishness of the TSA. That and you know that if you steal my identity, I’ll track you down.

Jon to Judge: Release the Names of the TSA Screeners Who Harassed Me

A part of my lawsuit from when the TSA detained me in FLL airport in 2011 relates to a Freedom of Information Act request I submitted after the incident, which asks for all documents relating to their illegal detention: incident reports, video, e-mails, etc. After the airport initially lied to me (because they were worried about giving away the “secret” fact that they videotape TSA checkpoints), the airport and TSA have given me most of the documents — with the exception that they took out all the names of all the TSA employees who wrote the documents, and blurred the video so that you can’t see the faces of the screeners. That’s right — the TSA has the right to digitally strip search you, but a video of their faces might violate their privacy.

My brief explains why this is legally wrong, but also why it’s not in the public interest:

The public has an undeniable right to review the actions of its government, and this concept is the very reason for the existence of public records laws like FOIA. As any citizen who has contested a traffic violation has found out, in the context of where a member of the public offers a version of the facts that contradicts a version offered by an employee of the government, all other things equal, courts uniformly adopt the version proffered by the government employee, even in situations where the burden of proof is high. Often times, video evidence is the only means a criminal defendant has in order to dislodge an accusation by a police officer.

But, the public interest of the release of videos of government interaction goes far beyond that of the individual whose liberty or property is on the line. Release of video provides accountability of government officials to the public. When an official knows that his or her actions are being recorded and may be published on the evening news, it is axiomatic that he or she will be more likely to act lawfully and in the public interest.

If there were ever a government agency that could benefit from increased accountability to the public, the Transportation Security Administration is it. In 2012, the TSA has admitted that hundreds of its employees have been caught stealing from members of the public. It admitted to strip-searching grandmothers without lawful authority. It admitted that it hires former clergy accused of sex offenses against children to search children. And, regardless of whether or not such actions are technically legal, it is accused on a daily basis of bullying everyone from grown men to women and children. The TSA is more disdained by Americans than the Internal Revenue Service, a distinction which they have well earned.

Accountability is achieved not by releasing redacted video with blurred faces, but rather by the knowledge that the public – your friends, family, neighbors, letter carrier, Starbucks barista, and anyone else – will judge you if you make a 3-year-old on her way to Disney World cry because you were a power-hungry, arrogant, insensitive, and pathetic individual in the course of your service of the American people. When both the courts and Congress refuse to – or work at a snail’s pace to – leash an out-of-control agency such as the TSA, this is all that we, the people, have left. On the flip side, with the release of video, members of the public who make accusations of mistreatment when they were in fact to blame for an incident will lose their power to malign the agency and its employees.

Defendant TSA is absolutely correct that when the Court releases the full video to Plaintiff, he will publish this video for the world to see. However, if TSA and its employees have done nothing wrong, they should be proud to have that video published, demonstrating their faithful service and that Plaintiff is simply a “troublemaker.” The truth of the matter is that the TSA does not want disclosure of the videos in this case and many others because it knows that while it can argue the legality of its actions in court, it cannot justify its actions to the citizens.

The most awesome part of writing this brief was that the Department of Justice actually did all the research for me. As I was researching case law, I came across the Department of Justice Guide to the Freedom of Information Act, which was written (surprisingly) from an entirely neutral perspective and thoroughly analyzes, with case citations, privacy exemptions to the Freedom of Information Act. Lo and behold, the DoJ opines that “civilian federal employees who are not involved in law enforcement generally have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees…” I couldn’t have said it better myself!

If you want to see what the paperwork looks like when you say “no” to the TSA, check the end of the TSA’s motion (below).

Corbett v. TSA – Motion for Summary Judgment (Broward) (.pdf)
Corbett v. TSA – Motion for Summary Judgment (TSA) (.pdf) (3 MB)
Corbett v. TSA – Motion for Summary Judgment (Corbett) + Opposition to Defendants’ Motions (.pdf)

TSA Smashes Priceless Antique Cello Bow

Apparently they couldn’t get the thing to fit back in the box right when they opened to inspect, so they just tried to squeeze the lid shut. As a musician, this makes me wince. Original Story.