The Full Case Against TSA Scope & Grope: Why The Nude Body Scanners and Pat-Downs Are Unconstitutional
April 15, 2014 32 Comments
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.
- 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:
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