My 10 Year Civil Law Anniversary

“How did you get into filing lawsuits?  Like, if I wanted to sue the government, I wouldn’t even know where to start.”

When I first filed suit against the TSA, almost 5 years ago now, I had a little bit of experience. Ten years ago this month, a collection agency ignored me when I told them I didn’t owe any money, proceeding instead to put a disputed account on my credit report.  So, I looked into what my options were, and found out that there are a lot of federal laws surrounding third-party collection of debts.  Collection agencies have to provide some very specific dispute resolution procedures, represent things honestly, and avoid abusive practices.  These laws, found mostly in the Fair Debt Collection Practices Act, 15 USC § 1692 prohibit things like:

  • Threatening to take an action that it can’t, or doesn’t plan to, take (even “we’ll take you to court if you don’t pay” is illegal if they don’t have any plans to actually sue)
  • Pretending to be an attorney
  • Communicating false information (e.g., to a credit reporting agency)
  • Failing to communicate that a debt is disputed when it is
  • Calling before 8 AM or after 9 PM
  • Repeatedly calling with intent to annoy
  • Sending letters with markings on the outside (e.g., “DEADBEAT”) to embarass you into paying

15 USC § 1692(c) – (f).  They also require notice to be sent in writing with a disclosure of the right to dispute and receive verification of the debt from the original creditor.  § 1692(g).

And so, I filed Corbett v. GC Services, Inc., 05-CV-7680 [PACER subscription required] (S.D.N.Y., Aug. 31, 2005), alleging violations of the Fair Debt Collection Practices Act for not complying with a bunch of the rules above.  I looked up what other lawsuits looked like and wrote my own styled in the same way.  I reviewed the rules of the court.  Then I went down and paid a $250 filing fee (a bargain, as the fee is now $400), and I was in.

Justice was truly blind, as the late U.S. District Judge Richard C. Casey entered the courtroom for our first (and only) status conference with a seeing eye dog.  He seemed irritated at everyone, but denied an oral motion by the defendant to change venue and ordered the case to proceed.  G.C. Services ended up settling for an amount that I’m prohibited from disclosing, thus marking my first victory in civil court.

With that experience and a few other similar ones, when 2010 came around and the TSA was demanding to see us naked in order to fly, I was familiar with the federal courts.  Screwing around with asshole debt collectors was fun and profitable, but civil rights advocacy is fulfilling on a whole new level.  My first year of law school is almost complete, and I look forward to all the difference I can make over the decade to come.

Sometimes I’m a Trusted Traveler, Other Times I May Be a Terrorist

The TSA’s ability to predict which travelers are terrorists and which are not is apparently so good that not only can they identify which people are possibly terrorists, but they can also predict whether those people are in a “terrorist mood” before a particular flight, or are feeling rather non-mass murder-y that day. Much like rhythm-method birth control, being able to pick out “safe days” vs. “unsafe days” allows minimal inconvenience for all parties.

For example, on January 23rd, I was definitely not in touch with my inner jihadi, and so the TSA assigned me Pre-Check status…

Ticket with TSA Pre-Check Endorsement

Ticket with TSA Pre-Check Endorsement

This morning when I woke up, I didn’t even realize that I was feeling like causing some trouble. But luckily, the TSA did, and so they assigned me “selectee” status to dissuade me from bringing any bombs on board…

Ticket with “Selectee” Indicator

If you’re not familiar, the infamous “SSSS” stands for Secondary Security Screening Selection, and is applied to travelers that are on the “Selectee List” (kinda like the “No Fly” list, except they let you fly after petting your genitals before every flight), travelers who trigger an algorithm by doing such things as buying a one-way flight in cash on the day of departure (because Al Qaida can’t afford a round-trip ticket), or at random. It’s unclear why SSSS was assigned to me today or what effect this has for a boarding pass issued at an international airport, as Stockholm didn’t seem keen to treat me any differently, but I for one can’t wait to see what harassment I get when I land in New York.

Obviously I’m being facetious in suggesting that the TSA has the technology to determine which days a dangerous individual might decide to do something bad (and, for the dense within DHS, any suggestion that on some days I might be a terrorist or consider carrying bombs on a plane is also sarcasm). If on some days we’re saying people are trusted enough that they don’t have to take off their shoes, don’t have to take electronics out for separate x-raying, don’t have to go through a body scanner, and are screened using a metal detector calibrated to be less sensitive than usual, but on other days require the most vigorous of security screening, is the system not completely broken?

As far as keeping us secure, it is certainly broken. But is the Pre-Check system really designed to keep us secure, or is it simply to funnel rich people — that is, people with the most influence over the political process — through easier security such that they may continue treating the 99% like cattle without political repercussions?

Supreme Court Denies Review of Nude Body Scanner Lawsuit

With your support, I fought the good fight for over 4.5 years.  Today, the U.S. Supreme Court refused to hear my petition for review. This brings my court battle to an end.

We’re not without small victories. In 2012, Congress banned body scanners that require visual inspection by a human TSA screener. This also had the side effect of removing all the scanners that used x-rays, thought to be far more dangerous than the millimeter wave scanners. During this time the TSA’s press has gone from bad to abysmal, with the latest news being that 95% of the time the TSA tests its own screeners’ ability to detect contraband, the screeners fail. And without a doubt, the pressure we’ve put on the TSA has held them back from whatever their next intrusive and expensive new toy would have been.

While the courts have covered their ears, we have 2 other branches of government that can make this better. The next step on my end shall be to make noise towards our legislators. I’ll be working with the right people to make that happen, and it’s my hope to help draft legislation to make the situation better. I’ll also be continuing my lawsuit against the TSA’s international security interview program. Perhaps one more victory to add to the list is that the TSA has turned me into a life-long civil rights advocate, as I finish my first year of law school later this year.

Thank you, again, for all your support. I would have stopped long ago without your constant reminders of how important this is to you all. :)


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New York Tragedy: The Death of Kalief Browder

I wish I were writing this week about how the TSA misses 95% of weapons when screeners are covertly tested, how they “reassigned” the TSA acting director as a result, or how the TSA hired people on its own terror watch list as screeners. But since apparently no one actually is targeting our skies anymore (as clearly the TSA is not stopping anyone), the TSA is now merely a joke.

What’s not a joke is that a 22-year-old man is dead in New York, a suicide spurred by a systematic violation of his rights by the courts, “New York’s Boldest” (The NYC Department of Corrections), and the Bronx District Attorney’s Office. Kalief Browder was arrested when he was just 16 years old, accused of stealing a backpack. He plead not guilty and asked for a speedy trial, but because of delays by the NYC DA’s office, he was held for 3 years without trial before a judge told the city they had to let him go. A total of 31 court dates were scheduled, most resulting in an adjournment at the DA’s office’s request.

If that’s not bad enough, he experienced significant abuse and neglect on Rikers Island, the notorious NYC jail. Video taped beatings by guards, absurdly long stints in seclusion in solitary confinement, and abuse by his fellow inmates were this man’s life for more than 1,000 days without being convicted of a crime. While there is evidence that he may not have committed the crime in the first place, he likely would have served months — or less — had he merely plead guilty. Traumatized by his experience and struggling to integrate back into society after having those pivotal years taken from him, he took his own life last Saturday.

What does it say about our justice system that asking for a trial can result in spending more time in jail than pleading guilty, even if the result of the trial is a not guilty finding? What kind of judge refuses to release this man on a reasonable bail (or on his own recognizance) once they realize, “Hey! He’s already been in jail longer than we’d keep him if he were tried and convicted?!” What kind of DA postpones a man’s fate dozens of times because he can’t manage to prepare for a simple trial over 36 months? And where did our constitutional right to a speedy trial go??

Amendment VI – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

I hope there will be protests — I will be there. In the meantime, if you’d like to express your thoughts on the matter: Robert T. Johnson, Bronx District Attorney, 198 East 161st Street, Bronx, NY 10451, ph: 718-590-2312, fax: 718-590-2198, angueirl@bronxda.nyc.gov

NSA Ends Mass Phone Spying Program, Patriot Act § 215 to Expire

Although many thought that calling their legislators, protesting, and even whistleblowing were all a waste of time, privacy advocates celebrate a huge win today: the NSA will not seek to renew its quarterly authorization to collect bulk metadata from the phone companies, thus ending the NSA’s database of every single call made ever. Further, both the USA Freedom Act and the bill to extend the Patriot Act as-is have not failed, and it appears both houses of Congress will not be in session again until after § 215 (“the worst of the Patriot Act”) expires.

Now there’s some change I can believe in!!

There’s still reform left to go, of course, but it’s oh so nice to see things headed in the right direction for a change. We should also now pardon the whistleblower whose bravery allowed this reform to happen, but now must live in exile. I do hope the government is working on this.

TSA Backtracks on International Security Interview Program, Says Answering Questions Not Mandatory

Last January, I exposed the TSA’s International Security Interview Program, a secret, never before disclosed TSA mandate requiring U.S.-based airlines to question passengers before returning them to the states. I encountered the program before a flight from London to New York, and I filed suit against this unconstitutional restriction on our rights to travel and to remain silent after the TSA confirmed to me by e-mail that failure to comply = denied boarding:

TSA Reply

While often times a first filing by the opposing party is a pleading responsive to the complaint (in District Court) or the filing of an “administrative record” (in the Court of Appeals), the court, on its own, asked the parties to explain whether there was proper jurisdiction, and the first filing by the TSA not only admitted jurisdiction, but confirmed that it mandates airlines have such security programs and that the airline “must refuse to transport” those who don’t comply:

TSA Reply to Jurisdictional Question

Perhaps realizing that this policy is entirely indefensible, a couple weeks later, without prompting from me or the court, it sent the court a letter to “clarify” any “confusing” statements it made to the court in the previous filing:

backpedal

Well now, that’s better. But what does happen if you refuse? That question is entirely unanswered, but it seems clear that the TSA previously had a policy of forcing denial of boarding, and has backpedaled on it now that it has been exposed. A huge win.

So, I made the TSA the following settlement offer: detail what compliance passengers are required to give, detail what happens if they refuse, and specifically say that boarding will not be denied. Do this in a public bulletin that you post on your Web site. So far they’ve not responded to my offer, made last week. They probably need time to re-write their policies. :)

Corbett v. TSA – Original Jurisdictional Question Reply by TSA (.pdf)
Corbett v. TSA – Backpedaling by TSA (.pdf)

Federal Judge: No, you can’t search people’s laptops at the border for no reason.

At least as far as a forensic search (more than just turning it on and having a quick look) goes. In 2012, Homeland Security was conducting an investigation based on a jailhouse informant who said that Jae Shik Kim was involved in a 2008 crime. So, they did some investigating, found incriminating details, and applied for a search warrant. No, of course not, that would be too much work. Instead, they waited until Mr. Kim was crossing the border on an international flight and seized his laptop with no warrant an no more evidence than the tip, under the Obama administration’s “I do what I want!” policy regarding searching electronic devices at the border (scroll down to item 5.1.2 for what CBP thinks is lawful).

U.S. District Judge Amy B. Jackson has finally issued the government a long overdue smack-down in this regard. While her ruling is based on the particularly egregious circumstances of this case (waiting for someone to leave in order to get around a warrant, seizing the laptop without searching it and transporting it to be imaged and forensically analyzed, the flimsy tip, and the lack of any allegation of a current crime), she resoundingly rejects CBP’s assertion that it needs no suspicion to do whatever it wants at the border regarding digital devices.

Good on you, Ms. Jackson.

Somebody Think Of The Children!!

Getting drunk and having sex on a public beach during the day when there could be kids around isn’t exactly polite, and I’d certainly expect that if caught, one would end up in jail. Maybe some probation, pay a fine, etc., for a first-time offender.

Not in Florida, of course, where the state once again makes the news for being a bit retarded. Jose Caballero and Elissa Alvarez now face 15 years in prison and mandatory registration on the sex offender list for the crime of being drunken assholes. This is a crime where no one was injured, where children were not part of the intent, and the only damage done was that a couple parents had to explain the birds and the bees to their children before they had planned. (Cite me a single study, from a reputable source in the last 25 years, that shows that children have any long-term harm resultant from accidentally seeing a single sex act, and I’ll donate $100 to your favorite charity.)

I looked up the statute under which they were charged, and noticed something peculiar: it’s under the same section of the law that deals with statutory rape. As it turns out, they could literally have walked up to one of the children and persuaded him or her to join in on the sex, and it would have been the same penalty.

What on earth is wrong with the Florida legislature? Why can’t we keep things in proportion?

Because someone screamed, “think of the children,” and tough penalties on sex offenders win elections. As a result, 2 people’s lives are now ruined. Was your re-election worth it?

Feel free to let the prosecuting attorney know how you feel.

TSA Admits International Security Interview Program After Corbett Lawsuit …Plus Secret TSA Document!

For the first time, the TSA has publicly acknowledged its “international security interview program” — a program where U.S. citizens traveling from foreign countries are questioned by security contractors before being allowed to board planes home — in a court filing in response to my lawsuit against the program:

The petition for review challenges the lawfulness of an international security interview program, pursuant to which airlines flying to the United States pose certain questions to passengers before permitting them to board.

As relevant here, TSA has issued an “Aircraft Operator Standard Security Program (AOSSP)” that incorporates TSA-approved screening protocols. See http://www.tsa.gov/stakeholders/commercial-airlines (last accessed Mar. 26, 2015). The AOSSP is designated as Sensitive Security Information under 49 C.F.R. Part 1520, and has not been publicly released. However, it is correct that, as the petition for review contends, the AOSSP sets out the requirements for air carrier screening of passengers at foreign airports before those passengers are admitted to the secure area of the aircraft and transported to the United States.

To have implemented an entirely new screening program in complete secret with passengers having no notice of a requirement to comply is absurd. To have the contents of that program be a requirement that you talk about your travel plans or face being unable to return to your home country is unconstitutional.

Shhh... this is a secret!!

Shhh… this is a secret!!

How did they get away with this? By ordering the airlines to do their dirty work for them, and then marking the order as “Sensitive Security Information” (SSI), which means the airlines aren’t allowed to talk about it. This Aircraft Operator Standard Security Program (AOSSP) they speak of is a lengthy document containing security rules that airlines are required to follow but are prohibited from sharing.

However, unlike other pieces of SSI (such as the document that implemented the nude body scanners), this document not kept internal to TSA; rather it is distributed to every U.S.-flagged airline with planes over a certain size. The TSA isn’t exactly known for keeping its secrets by itself, but factor in the now thousands of employees and contractors who have access to the AOSSP, and I was fairly easily (and legally, on my end at least) able to obtain a version of it (although it would be nice if someone leaked the latest one to me :) ).

I believe the public has an interest in seeing at least portions of the AOSSP, as it effectively restricts their personal rights, and it does so without notice or meaningful opportunity for review. I gave the TSA first notice of the leak of their information (as I’ve always done, including when I published my video beating the nude body scanners and when I learned that the 11th Circuit had leaked secret documents in my case), and I may in the past, present, or future disclose what I’ve uncovered to attorneys for relevant civil rights organizations. For now, I won’t be disclosing the document or how I obtained it to allow the TSA time to plug their leak, as I believe some information that should legitimately be secret for security reasons was obtainable by me and would be obtainable by others should I disclose the method and/or the contents. (Note: The document was not sent to me by a source in confidence — if it were, I would protect the source to my greatest ability.) I do wish the government would stop relying on security through obscurity and start implementing real, non-invasive, community-reviewed security measures to keep us safe.

In the meantime, I will continue to fight against secret TSA policies that continue to erode our rights.


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U.S. Supreme Court Denies Review, Allows TSA To Read Your Personal Documents At Checkpoint

THe U.S. Supreme Court today denied one of my two pending petitions before it. This petition asked the court to review the 11th CIrcuit’s ruling that the TSA’s warrantless checkpoint searches are not limited to weapons or explosives, but can include virtually anything, including your personal documents. Love letters, photographs, business proposals, etc., are all fair game, and it leaves the door wide open to searches of electronic devices, such as your cell phone and laptop. (Note that this petition does not cover the nude body scanners — that petition is still pending.)

The original case comes from 2012, when the TSA decided that it wanted to tear apart my belongings because I had the audacity to refuse to let them touch my genitals at one of their checkpoints. They spent half an hour going through the little pockets inside my pants, flipping through (and reading) pages from books that I had, looking at the names on all the plastic cards they found, and generally looking not for something dangerous, but rather for something illegal, such that they could teach me a lesson about bending over and complying. In the end, they found nothing, and kicked me out of the airport. As icing on the cake, they conspired with the airport authority to lie when I filed Freedom of Information Act requests about the incident.

Other than that their intent was to teach me a lesson, none of the above facts are disputed by the TSA. Instead, they argued that all of the above was totally acceptable (.pdf). And, it worked. The district court dismissed all claims, and the Court of Appeals refused to reverse.

One must ask how much of the Fourth Amendment is left when it is “reasonable” for the government to demand to read your papers simply because you want to travel? Does that remind you of another oppressive regime of the last century? It very much does to me.

Where to from here? If the courts think that current law allows the TSA to conduct these invasive searches that have no real correlation to transportation safety, then the law needs to change. I’ll be waiting for the Supreme Court to rule on the nude body scanner petition first, and then will work on promoting new legislation to fix what the courts should have.

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