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.

Corbett v. TSA: One Month Until Oral Arguments

The first filed and last remaining challenge to the constitutionality of the TSA’s goes to oral arguments on June 4th, 2014 at 10:00 AM in Miami, FL. On that day, I will need to persuade 3 federal judges that using a machine that can see every inch of our bodies without any suspicion whatsoever and when effective alternatives exist is a violation of our Fourth Amendment rights.

There is no doubt: this is an uphill battle. Just a couple weeks ago, U.S. Supreme Court justice Antonin Scalia said in an interview that it is “foolish” to have the courts strike down the executive’s decisions on anti-terrorism measures because the courts don’t have enough information to decide if that’s safe. We live in a world where those in government, I think, truly believe that if we don’t give the executive free reign to fight the war on terror, civil rights be damned, we are all going to die. A world where critical thinking is prohibited because the government must know better, and us mere mortals (“civilians”) are not equipped to scrutinize the means by which the government “keeps us safe.”

I will attempt to persuade the courts that they must complete their constitutional duty of making sure that the laws of Congress and acts of the executive do not trample the limitations clearly enumerated in the Bill of Rights. That they must look deeper into what the government is doing rather than giving infinite deference, and if the courts feel they don’t have enough information, they must seek out the truth. For if we have a court system that will forego seeking the truth because it would be difficult, inconvenient, or time-consuming, we are entirely lost.

I invite you to join me in Miami on the 4th. It is possible that the court will close the courtroom for some of the proceedings (wouldn’t want secrets like the fact that the body scanners don’t actually work leaking out to the public!), but I will advocate for keeping as much of the proceedings open to the public as possible.

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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Update: NYPD Accepts Coins

A few weeks ago, I mailed the NYPD over $800 in coins to cover some court costs. Initially, it seemed that they refused the shipment, but I just received a check from the NYC Law Department for $8.05, presumably a refund from putting a few too many coins in the box (I got a little excited). Pleasure doing business, po-po! :)

No-Fly List Conclusion: Government Declines to Appeal, Full Order To Be Released (?)

If you’ve been following, I’ve been covering the case of Rahinah Ibrahim, the university professor who was accidentally placed on the no-fly list — which came with a whole host of other issues — because an FBI agent accidentally checked the wrong box. This woman was forced to go to court to correct this obvious mistake, because either the government was embarrassed or, perhaps, simply doesn’t care.

The case was a circus, with the government attempting to protect her inclusion on the list as a “state secret,” in addition to being classified. This argument was sternly rebuked by the judge. The government also blocked a witness for the plaintiff from entering the country. The judge’s ruling on that is largely redacted. In the end, the judge ruled in favor of Dr. Ibrahim and ordered that she be removed from any lists she found herself on as a result of the FBI’s error.

The government’s time frame to file an appeal has now expired, and so Dr. Ibrahim’s case is finally over. It has now been demonstrated that there is a right to due process with the no-fly list, and the government cannot simply take away your right to travel and say, “sorry, that’s a secret.” Those redactions may also be short-lived, and we may get a fuller story soon, as the judge found that his ruling should not be redacted and agreed to keep his conclusions a partial secret only pending appeal. It will be exciting to have the final pieces of this story laid out.

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.

NYPD Court Costs Paid With 20,000+ Coins — Change We Can Believe In!

ReceiptOur “Change We Can Believe In” donation drive to cover $820.15 in costs due from my NYPD stop-and-frisk lawsuitdismissed by a judge who said that I couldn’t prove that the 4 men who detained and unlawfully searched me were actually cops — was a huge success and generated more than enough in donations to cover the fee. Mailed to the city last Thursday was over 16,000 pennies, plus nickles, dimes, quarters, half-dollars (had to order these off eBay — the mint apparently doesn’t circulate half dollars anymore!), and dollar coins, as well as a few small bills to make sure the exact amount fit in the flat-rate Priority Mail box (cost to ship incl. insurance: $25). The package came to over 60 lbs., heavy enough that the post office asked me to carry it into the loading dock for them.

The city, of course, refused the shipment, as online tracking confirmed today. I’ve let the city know that if they want their money, they can arrange pickup, otherwise, I will donate the change to local homeless people (I think it would be interesting to respond to, “Can you spare some change?” with 60 lbs. of coins :) ).

This is just a small part of the coins used in the final product...

This is just a small part of the coins used in the final product…

Box o' Change before the few bank notes were added

Box o’ Change before the few bank notes were added

The final box...

The final box…

A love note to the NYPD's attorney on the case...

A love note to the NYPD’s attorney on the case…

All set to head out to the Ministry...

All set to head out to the Ministry…

The Most Sued NYPD Officer: 28 Times in 8 Years, $884K Paid in Settlements

Det. Valentin -- NYC's Most Sued CopMeet Detective Peter Valentin. Det. Valentin makes approximately $125,000 per year, including overtime, for his role as a narcotics officer with the NYPD. In the last 8 years, this cop has been sued for violating the civil rights of the people 28 times, or about once every 3 months or so. The suits that have settled have already cost the city (read: the taxpayers) over $884,000, as exposed by the NY Daily News.

The fact that these suits were settled means that the city found them to be credible. New York doesn’t simply settle lawsuits to get rid of them if it thinks they can win, and as you may have noticed on my blog, goes through great lengths to convince the courts (often successfully) of some very creative defenses. Yet, despite the fact that the city has plenty of reason to believe that this cop routinely violates the citizens, Det. Valentin is still a member of the NYPD.

Although Det. Valentin holds the record for “most sued officer,” he is hardly alone. The top 12 most sued NYPD officers were involved in a total of 231 cases and have cost the taxpayers at least $7,709,071. All of them are still employed. And there’s another interesting anomaly: of the top 12, nine of them are narcotics officers. The “war on drugs” is, of course, responsible for the rise of the American police state moreso than any other factor, and brings us all of these “no-knock warrants” that leave 80 year old men shot in their beds, searches authorized by dogs rather than warrants, and “I smelled marijuana!” as the universal justification for police assholery.

Why is it that these men are allowed to continue to victimize the population? Possibly because despite costing the city $7.7M, in addition to their salary, narcotics officers bring the city significant revenue in the form of civil forfeitures. Perhaps the NYPD looks at these lawsuits, and the beatings and false arrests doled out to innocents caught up in the dragnet, as “the cost of doing business.” After all, despite the fact that these cops are sued personally, the city still picks up the tab, so there is zero reason for these officers to behave as long as they keep bringing in the dollars.


The Day We Fight Back

The Day We Fight Back

Today is “The Day We Fight Back” against NSA mass spying — a day sponsored by a broad coalition including EFF, Demand Progress, ACLU, Reddit, Mozilla, Amnesty International and at least a dozen others. The goal: to flood the offices of Congress with e-mails and phone calls for a day with our demands: that our privacy, as guaranteed by the Fourth Amendment, be respected once again. To participate, click the banner above. It takes about 2 minutes.


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