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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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.

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

TSA Files Secret Motion in Case Against Scope & Grope

My case against the TSA’s nude body scanners and invasive pat-downs has had an interesting month after court officials accidentally posted one of my sealed briefs — containing secret and embarrassing TSA documents — which was later published by the media. I was then ordered not to talk about the contents of those leaked docs, even though, by now, tens of millions of people have read about them. The TSA then unilaterally declared that it has the right to edit and file my own briefs for me.

Pending before the court now is another motion filed under seal, listed on the public docket as “MOTION to compel filed by Respondent Transportation Security Administration…”

Motion Under Seal

I have a copy of the motion, but I’m prohibited by court order from publishing it here (and it appears the clerk’s office has learned how not to accidentally post sealed documents). A “motion to compel,” as a general matter, is a request for a court to order someone to do something. Why would the TSA need to do this under seal? I unfortunately can’t answer that question for you yet. What I can say is that I filed my opposition to the motion today and asked the court to unseal the motion in its entirety.

The TSA is not an organization that needs to operate in secrecy. “Security through obscurity” — a security mechanism that requires its operations to be hidden — doesn’t work, because people always find out how things work. It is universally derided in the tech security world, and the same logic applies to physical security. The alternative is to open your security model such that experts all over the world can review it, identify issues, and fix them. That’s the security we need. It’s too bad the TSA doesn’t feel the same way.

Three Years Later…

Three CandlesMy fight against TSA assholery began 3 years ago with a tiny 5 page complaint filed in a U.S. District Court in Florida, which has now grown into over 1,000 pages of legal filings, 3 trips to the Court of Appeals, one trip to the U.S. Supreme Court, and, of course, embarrassing the TSA in front of the world by showing, on camera, that their nude body scanners don’t work. I’ve been kicked out of three airports, equated with a terrorist by the DoJ, and gagged by the courts. I’ve presented my findings to Congress and to the TSA itself at its Arlington headquarters and testified in front of the legislature of the State of Texas. My work has been at the top of virtually every social sharing site and featured on Drudge Report. And that’s just the TSA — I’ve had even more fun with NYPD stop-and frisk and the NSA scandal.

We’ve seen several small steps towards success. The worst types of nude body scanners (both for the health and privacy conscious) have been removed from airports. The TSA no longer threatens $11,000 fines for those who refuse groping, nor sics the cops on them (mostly). Pat-downs have been modified for seniors and children. Airports across Europe are tossing their scanners aside. The TSA was forced to accept public comment on the nude body scanners. And, most importantly, pretty much everyone is now clued in that the TSA is an utter waste.

I’ve never worked so hard at anything in my life, and it’s because of your support — your encouraging comments, your stories by e-mail, and your generous donations — that I’ve been able to keep going. Thank you again for being here with me, and I look forward to seeing another year of rolling back the TSA.

[Edit -- Also, happy 200th post, apparently!]


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Want to Know Why The TSA Needs to “Touch Your Junk?” Sorry, That’s Classified!

Grumpy Cat with SSIIn 2010, the TSA implemented a radically invasive search program that transformed the agency from a mere inconvenience to the most despised agency in the country. Late that year, the nude body scanners and enhanced pat-down procedures were rolled out as primary screening, ensuring that the TSA would either look at or touch every inch of your body. The pat-down involves a TSA screener literally putting their hands in your pants (they call it a “waistband check”), in the name of your safety.

Is all this really necessary? For what purpose does the TSA require a hand on your genitals? Internal TSA documents leaked by a federal court a couple weeks ago provide some insight on the matter (that I’ve been ordered not to discuss, so you’ll have to click the link to find out why!), but my lawsuit challenging the constitutionality of “scope-and-grope” forces the TSA to explain itself in writing. The time has finally come, and their answer?

Sorry, that’s classified!

The TSA filed on Tuesday a motion to submit their brief — the one that explains why they “must” abuse travelers in airports nation-wide — under seal and ex parte because it will contain information administratively classified as “Sensitive Security Information.” “Under seal” means the public doesn’t get to see it, and “ex parte” means that the other side of the case (me) doesn’t even get to see it. (They were nice enough to offer to send me a redacted copy at some point, which I’m sure will resemble a stack of black construction paper.)

The TSA is, essentially, saying to the public: “Trust us, we need to use scanners to conduct a virtual strip search, touch your body anywhere we like, and anything else we deem necessary, but we can’t tell you why because then the terrorists would win.” At this point, does anyone still believe them?

Corbett v. DHS – Motion to File Under Seal (.pdf)


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Government Censors Send Me “Final Copy” Of My Own Brief

Continueth down the rabbit hole, it appears we must do. After the 11th Circuit clerk’s office accidentally published my brief containing embarrassing quotes from the TSA’s own administratively classified records — provided to me under seal and a court order of secrecy — the government went into full damage control mode. I soon received a call from the court and from the Department of Justice, threatening that even though these documents that they accidentally released were now published all over the Internet (Infowars, Boing Boing, Courthouse News, and even some MSM, such as Philly.com), I must refrain from any discussion of the topic since, in their view, these documents, which have literally reached the screens of millions of people at this point, are still sealed.

I filed a motion asking the court to clarify for the government that I can talk about information that is in the public domain. While I wait for that ruling, I received an e-mail from the DoJ today which purported to have a government-approved “final, redacted copy” of my own brief. Which is funny, because I produced and filed a “public” copy that redacted any discussion of the sealed documents entirely, and because the court in no way gave the government permission to redact my filings. I looked through their redacted version, and it appears the only sentence that they redacted that I did not is the following:

CENSORED BY THE U.S. GOVERNMENT [?]

The government’s claim that this is secret information is, frankly, bullshit. Anyone paying attention to the news knows that no terrorist has taken — or even attempted to take — explosives on an airplane through a domestic airport since before 9/11. How far before 9/11? Well, as I explained on March 6th, 2012 — more than a full year before the government provided me any sensitive documents — in my infamous video beating the TSA’s worthless nude body scanners, it’s been nearly 40 years:

When the machines came out, we were told that the invasion on our privacy, doses of radiation, and trashing of our Constitution were necessary because the old metal detectors weren’t good enough. That “non-metallic explosives” were a threat, even though no one has boarded a plane in the US with any type of explosive in nearly 40 years.

So no, DoJ, I won’t be censoring that line, and I won’t stop talking about the fact that, based on any rational review of public documents in my possession well before your sealed docs, you have zero basis for your continuing to scare the American people by telling them that airplanes will “go BOOM” if we don’t allow you to molest us at airports.

Freedom is not living under a government censor telling me that I can’t point out the elephant in the room.

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