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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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.

Two Years Later: Scanners Still Broken

Two years ago marks the publication of my infamous video devastating the TSA’s arguments that the nude body scanners keep us safer. I demonstrated, on camera, one of many flaws in the technology that allowed me to take anything through the checkpoint undetected.

That flaw still exists today. So why are we still using these expensive, invasive scanners if any terrorist with half a brain could beat them? That’s a good question. Is it the questionable ties between the manufacturers and the government? Is it that the TSA likes shiny new toys and maxing out their budget? Is it that the government wants us to become accustomed to submitting to electronic body searches? Is it that the TSA is simply too embarrassed to admit that they wasted over a billion dollars?

There really is no good explanation as to why the TSA continues to use this technology. After having read through ten thousand pages of their documents and third party documents, it seems to simply be stubbornness absent a good reason at this point.

TSA Gives Me PreCheck Access… Without Asking

You can imagine my surprise when I received this boarding pass yesterday…

That’s right — the guy who sues, publicly humiliates, and fights before Congress the TSA now has TSA PreCheck, meaning that I’ll personally almost never encounter a body scanner or pat-down again.

I never asked for it, never opted-in, and had no notice that I was included. I intentionally avoided it because I don’t think it’s fair that one should have to do anything to avoid being abused by their government. Their inclusion of me in this program is further ironic since in 2010, when I filed a motion for a preliminary injunction that would require the TSA not to scan or molest me, the TSA argued that such an “ad hoc” exclusion would devistate the TSA’s inpenetrable fortress. But here we are in 2014, and the TSA has done just that.

How and Why

There are many ways that people can get PreCheck status, according to the TSA, the most common being allowed to opt-in as a result of frequent flyer status. I do have that status, but I’ve never opted in, so I assume this not to be the reason.

More likely is the TSA’s new “risk assessment” program, where the TSA somehow decides, based on information like your name, address, and travel history, that you must not be a terrorist. Perhaps this is how I’ve made it through.

Or perhaps the TSA simply thinks that if it keeps me away from the body scanners, I’ll shut up. Nope — what the TSA is doing is wrong, and it’s wrong whether they decide to give me special treatment or not. “The beatings will continue until morale improves.”

U.S. Court of Appeals Orders Me to Take Down Blog Posts

You may recall that back in October of last year, I filed a brief that discussed secret information provided to me by the TSA under court order not to release, and the clerk of the court mistakenly published that brief for the world to see. It contained information that was quite embarassing to the TSA and undermined their assertions that abusing us at airport checkpoints is necessary and was picked up (and mirrored) by major news and social media sites across the world.

The attorneys at the Department of Justice proceeded to flip out on me for discussing this “secret information” that was no longer actually secret, through no fault of my own, and demanded that I refrain from talking about something that anyone can read in the news, effectively making me the only person in the world who is barred from speaking on the subject. The court today temporarily granted their request and ordered me to delete the contents of any blog post that contains the not-so-secret information, pending the outcome of the case, at which point they will decide whether to make their gag order permanent.

I’d say that the court’s order was obnoxious censorship, but thinking about it, it seems more likely that they just want the government to stop bothering them about this nonsense. I say this for two reasons. First, the court entirely ignored the issue for about 2 months, allowing my Web site to remain as-is, before finally addressing the issue, which suggests to me that they really don’t care. Second, the court specifically granted me permission to link to the news sites that discuss (and host a copy of) my leaked brief, meaning they acknowledge that the information is still going to be around.

So, if you’d like to read the information that the court has ordered me not to discuss, click here to read the news article about it, which includes a link to the full, unredacted leaked brief. I can’t discuss what you might find at the link above, I can only provide the link.

Censorship is stupid. Paritally because it’s wrong, and partially because it’s ineffective.

Federal Judge: No-Fly List Violates Due Process (Updated)

Today is a good day in the courts: a federal judge in California has ruled in favor of Dr. Rahinah Ibrahim, the college professor who once left the country to go to a conference and, when she tried to come back, found out her visa was revoked and she was on the no-fly list.

For those not yet familiar, the no-fly list has, until now, been a tool to deprive the people of their rights without due process under the law. To get on the no-fly list, one is “nominated” by a fed in one of a handful of agencies, that nomination is processed by the FBI, and you’re on the list. Once you’re on the list, they won’t tell you you’re on the list — you just can’t get a boarding pass, ever. You’re (obviously) never told why you’re on the list, and never given a chance to challenge it. The government offers a form to fill out to request a review if you think you’re on the list, but there’s no process by which it is reviewed (that is, your form is basically memory-holed).

No judge is ever involved, and even for Dr. Ibrahim, the government fought every step of the way to avoid having a court even consider the matter (much like how my case against the TSA’s nude body scanners was delayed for 2 years while the government argued that a federal district court could not touch the issue). The government argued that questioning the no-fly list would reveal “state secrets” — information so sensitive that the executive branch has the right to withhold it even from closed-door review by a federal judge. So much for “the most transparent administration ever,” eh?

Nothing underscores the absurdity more than the fact that U.S. District Judge William Alsup’s ruling, save for the fact that it was in Dr. Ibrahim’s favor, has been sealed pending appeal. That is, the government argued that a ruling that the no-fly list is illegal would release classified information.

Thanks to Judge Alsup’s refusal to be bullied, this absurd practice comes to an end — pending review by the U.S. Court of Appeals for the Ninth Circuit.

Update: Judge Alsup has released a public summary of his ruling, explaining that the government made a mistake by adding Dr. Ibrahim to the list and must correct that mistake.

Fully Briefed: Can TSA Read Your Documents, Threaten False Arrest, Lie About Checkpoint Video?

In August 2011, a TSA supervisor detained me for an hour, threatened me with forcible search and (false) arrest, read through my documents, and, ultimately, ejected me from the airport… all because I wouldn’t let a TSA screener “touch my junk.” Afterwards, I asked for CCTV video of the incident under FOIA, and was lied to about its existence. I filed suit, and last year, a federal judge dismissed that lawsuit, arguing that all of the above was either legal, or that the TSA manager had immunity from damages.

The issue is now fully briefed before the U.S. Court of Appeals for the Eleventh Circuit. A three judge panel will now decide whether there is truly no recourse when someone so egregiously violates your rights (assuming we still have those). Although “fully briefed” means that all parties have said their peace in writing, the TSA has taken the unusual step of requesting oral arguments. I assume this means they are unsure of their case, and it’s a good sign.

Corbett v. TSA – Appellant’s Opening Brief

Corbett v. TSA – Appellee’s Brief (Federal Defendants)
Corbett v. TSA – Appellee’s Brief (Broward County)
Corbett v. TSA – Appellee’s Brief (Broward Sheriff’s Office)

Corbett v. TSA – Appellant’s Reply Brief

Eleventh Circuit Orders Oral Arguments in Case Against Scanners

I received a call just now from a pleasant sounding woman in the clerk’s office of the U.S. Court of Appeals for the Eleventh Circuit. She informed me that oral arguments have been scheduled for June 4th, 2014, at 10:00 PM in the court’s Miami building for my case against the TSA’s nude body scanners and invasive pat-downs.

What does this mean?

Oral arguments are discretionary and not given as a general rule. The fact that they granted them means that they are taking the case seriously and have questions they would like to ask. This is a good thing — it means they have decided not to simply brush my case aside. Both parties will have an additional chance to speak beyond the written briefs, which is decidedly advantageous to me because many of the government’s arguments are difficult to make with a straight face. It’s one thing to talk around the issues when you have weeks to figure out how to phrase things; it’s another when you have a panel of federal judges asking tough questions in person.

The only downside is this means we will have no ruling until, likely, at least July. So, for now, continue to opt out of those scans!


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“Change We Can Believe In” Donation Drive

ChangeIn October, I posted that I wouldn’t be pursuing an appeal in my case against stop and frisk, which was dismissed on the theory that I couldn’t prove that the 4 plainclothes cops who stopped and frisked me were actually real police officers (they might have been, you know, just ordinary citizens playing a game!). I think the ruling was wrong, but I felt that I couldn’t effectively pursue that appeal in addition to the two actions I have against the TSA, which are more important to me, especially in light of the advances against stop and frisk made by others this year. Each of these cases I take on generate hundreds of pages of complex legal documents, monetary costs, and stress — all totally worth it, by the way.

As a result, the NYPD asked for, and received, a judgment for their costs in arguing the absurd, over my objections and despite their request for costs being after the deadline set by federal rules. They don’t get attorney’s fees, but court reporting fees, copies, etc., resulted in a bill for $820.15.

I’d like to send them this $820.15 in coins, and I’d like your help! If you have a coin jar that you’ve been filling and would like to use it to make a statement, mail it my way. The USPS Small Flat Rate Box would fit well over $100 in coins and costs $5.80 — potentially less than CoinStar would charge you to count them (no worries, I have access to a free coin counter). If you don’t have coins sitting around, I’d be happy to turn your PayPal, Bitcoin, or check donation into pennies, nickles, dimes, and quarters on your behalf. Here’s how:

  • Coins: Mail to Jonathan Corbett, 228 Park Ave. S. #86952, New York, NY 10003
  • PayPal: Donate here!
  • Bitcoin: 15ftA2938sp7Mnsi8U7wYVmEtd4BRbFnkT
  • Check: Make out to Jonathan Corbett and mail to the address above

Once I get the coins together, I shall assemble them into a sculpture that expresses my feelings towards the NYPD and send it their way. I’ll, of course, post a picture. This, my friends, is change that we can believe in! :-D Thank you in advance for your support and for helping me to not only continue to fight against abusive governments in court, but also to help me make this special message to the NYPD.

Judge in CA: If Secret Information Is Published, It Is Public

If you’ve been following my recent Orwellian saga where the government accidentally published one of my sealed briefs, exposing information embarrassing to the TSA to the public, and then demanded that I stop talking about it despite it having been published to millions, there is some good news out in California.

A federal judge for the Northern District of California was confronted with a similar question in another case you may have heard about: Ibrahim v. DHS — the foreign-born professor who left the U.S. for a few weeks to be never allowed back because she was erroneously placed on the no-fly list (which apparently causes your visa to be revoked). The government in that case was demanding that Sensitive Security Information — the D.H.S. monicker for “stuff it wants to keep secret” — be prohibited from disclosure in open court, even if that SSI was gleaned from a public source. U.S. District Judge William H. Alsup firmly and unambiguously rejected that argument in a ruling delivered orally on Monday:

[I]f the government was contending that the ABC list and its very existence was secret and should be SSI, and the plaintiff was able to prove and wanted to try to prove that there was such a list and could do it from independent sources, the government cannot clamp that down and say: No, you can’t even mention it because that’s SSI, if there is an independent public source for that information.

So in my view, the plaintiff has the right to try to prove its case. And if it can prove its case entirely through publicly available information, even if the same — the same information is within the government designated as SSI, the plaintiff can still use that publicly available evidence if it’s admissible.

Let’s hope the court in my case decides the same. I’ve sent them a copy of Judge Alsup’s ruling to help them. :-D

Excerpt from Ibrahim v. DHS Ruling Re: SSI

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