Nude Body Scanner Case Headed Back to US Supreme Court

Despite a split vote in the 11th Circuit’s ruling that it is too late to challenge the body scanners, the court denied my petition to have the full court consider the matter. I will be petitioning the U.S. Supreme Court to review this case, and therefore will have 2 petitions pending before the high court (this one in addition to my other case which challenges the limits of checkpoint searches).

I’ve already had one rights group confirm that they will be filing an amicus brief in support of that petition. If you are a member, donor, or employee of a civil rights organization, please share with them your desire that they also file an amicus in the matter. Having a petition supported by well-known groups greatly increases the chances that the court will decide to hear the case.

Supreme Court Clerk Returns Petition for “Insufficiently Thick Cover”

I’ve blogged before about the absurdity of filing with the Supreme Court: the special 6.125″ x 9.25″ bound booklet that must be specially printed, the requirement to send 40 copies of everything, and most especially, the intake process which involves placing all of your documents inside of a garbage bag (no, not metaphorically… literally). Today, I got news that my petition for certiorari filed last month has been rejected by the clerk for having an insufficiently thick cover page, printing a table of contents on the back of the cover, and including a certificate of compliance within the booklet instead of as a separate page. This despite printing the document the exact same way as I did for my last petition, which was accepted without issue in 2012.

It is precisely this kind of nonsense, at the expense of delaying justice, that causes Americans to not only be afraid to participate in the judicial process, but to disrespect it. The documents they received were entirely usable, but now all 40 copies must be re-printed and my case pushed back by several weeks. It’s about time that the Supreme Court discontinue the mentality that it is a privilege to appear before them and accept filings on normal paper like every other court in the country.

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)

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.]

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.


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