Corbett Sues TSA Over International Security Interview Program

Last month I wrote about an experience I had in December where, before flying from London to New York, I was required to answer questions by an airline security contractor who would then put a “sticker” on my passport to indicate that I had been cleared. Having someone look at my passport and put a sticker on it was nothing new: I assume many airlines would want to make sure that a passenger has the appropriate travel documents to fly to their destination because the airline may be liable for fines if they transport inadmissible passengers. What was new was that the questions asked had nothing to do with my documents or my flight, but were personal questions: Why was I traveling? How long had I been away? etc.

What I encountered in Heathrow was rather reminiscent of the TSA’s “Screening of Passengers by Observation Techniques” (SPOT) program it had run domestically. SPOT was premised on the idea that terrorists probably look visibly nervous and can be identified by talking to them. The program wasted nearly a billion dollars before the Government Accountability Office reported that there was no evidence that the program had any efficacy whatsoever. But, passengers could refuse to participate in SPOT and still be allowed to fly, while the security contractor in London told me that I was required to comply. So I wrote to American Airlines, the airline who hired the contractors, and got a reply:

AA Reply

Ah, so these contractors aren’t merely placed there by the airline, they are “controlled by DHS/TSA.” I was not surprised, despite being in a foreign country. So let’s ask TSA what happens if they get a call from an airline stating that someone has declined to participate in these security interviews:

TSA Reply

To recap, the airline and government is admitting here that there is a program to interview travelers as a condition of flying. I had never heard of such a thing before. Did I have my head in the sand?

Try a Google search. I challenge you to find a single article, announcement, press release, warning, or other indication that the ability to come home would be contingent on telling the TSA why you wanted to travel, written before I published my story last month. There’s nothing, and that’s because, as the TSA also admitted, the program is conducted entirely in secret, using the pseudo-classification of Sensitive Security Information (SSI).

U.S. citizens have the right to re-enter their home country. We also have the right to remain silent when interacting with government officials. The TSA has secretly tried to trick us into picking only one of those two rights. I instead pick both, as well as my right to petition my government for redress, and have filed suit today against the TSA. I’ve asked four federal judges to rule that the program is an unconstitutional violation of our Fifth Amendment rights and to enjoin the TSA from forcing airlines to hire interrogators to sit outside international gates.

Four federal judges, you ask? The TSA was given special rules for jurisdiction over challenges to certain types of TSA decisions known as “orders.” Orders are challenged in front of 3-judge panels of the Court of Appeals, whereas any other TSA assholery is challenged in front of a U.S. District Court judge. Since the international security interview program is a secret, it can’t be determined whether it qualifies as an “order” or not, and if you accidentally file in the wrong court, you’ll be out of time to file in the others. So, my petition was filed simultaneously in the district court covering the airport where I was flying to (the Eastern District of New York) and the appellate court in my home district (Eleventh Circuit Court of Appeals). Double filing fees and double paperwork means that the TSA can’t evade review by claiming that the program is, or is not, an “order” depending on what suits their mood.

Corbett v. TSA III – District Court Complaint (.pdf)
Corbett v. TSA III – Court of Appeals Petition (.pdf)


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Secret TSA “International Security Interviews” — Thoughts on a Lawsuit?

It’s not often that I learn something completely new about TSA policies, but I was definitely caught off-guard last month when I was told at London Heathrow that I was required to answer some questions in order to board my flight to New York by airline security contractors. Half asleep from a day and a half of flying prior, I encountered the first in the AAdminal’s Club, who I, at first, paid no attention to, but when questions changed from, “Where are you flying?” to “Was your trip for personal or business purposes,” and “Where were you since you left America,” I asked if the questions were necessary, and was told yes. I refused, was referred to an AAdmiral’s club employee, and was allowed on my way.

ictsstickerThe purpose of having this security guy in a lounge turned out to be “convenience.” As I got to my gate, I learned that some passengers had “stickers” on the back of their passports, meaning they had completed one of these so-called “security interviews,” and if I had complied in the lounge, I would have had a sticker. So, being stickerless, another security contractor starts interviewing me, this time asking only 2 questions: where I was flying, and how long I’d be staying there. I gave him a funny look, and he said, “Oh, you live there,” put a sticker on my passport, and let me through.

I immediately complained to AA via e-mail (before I was even in the air), and the next day I had a response that the security interviews in London were TSA-mandated. I asked them to clarify what the procedures were and what happens if a passenger refuses, and was told the procedures were Sensitive Security Information (SSI) and I should contact the TSA. So, I did.

Today, a few weeks later, the reply from the TSA is that security interviews are required as a part of the airline’s TSA-approved security program, that they are indeed SSI, and that failure to comply would result in being denied boarding.

I’m leaning towards filing suit against this policy. Here’s why:

  1. First, it should be clarified that this is *NOT* a border search, a search by Customs & Border Patrol (or their internationl equivalent), or an airline/airport security procedure (the TSA’s phrasing it as the airline’s security program neglects the fact that they forced them to adopt such a program). This is the TSA forcing you to answer questions before you can return. It turns out that not even CBP can force you to answer your questions, if you’re a U.S. citizen.
  2. As an American, I have several rights that cannot be exercised together as a result of this policy. The right to remain silent, the right to travel, and the right to be re-admitted to my homeland are all clearly defined. The TSA is now basically saying, “pick two.” (But, I choose all three, thanks.)
  3. This program is entirely secret. Google for “international security interviews TSA” and see what you get. It’s all about domestic stuff relating to Pre-Check and trusted traveler programs. The contents of this program, as admitted by the TSA and airline, are SSI, have never been disclosed to the public, and even surprised a frequent international traveler and TSA troublemaker like myself. (I’ve had the “sticker” before, but I had never thought anything of it because they had never asked anything more than was printed on my boarding pass.)
  4. My flight was returning home to my family on Christmas day. If the second interviewer had asked the same questions as the first, I would have again refused and been denied the ability to see my family on a holiday because of a secret interview of which I had no notice of a requirement to comply. I don’t want that to happen to me or anyone else in the future. I shouldn’t have to guess whether “none-of-your-business” type questions will be forced on me as a condition of traveling internationally.
  5. Finally, this has to be one of the most useless security measures ever. Like the TSA’s somewhat-abandoned SPOT program, all one need do to defeat it is calmly lie — or print out a sticker in advance.

So, what do you guys think? Is a lawsuit in order here? I’d also love to hear any interesting stories if you’ve been through one of these interviews.

Open Letter to Chief Justice John Roberts

My Supreme Court petition has been re-filed after correcting the “insufficiently thick covers” complained of by the clerk’s office. I also wrote a letter to the Chief Justice to politely remind him that it’s 2015 and that the Supreme Court is behind all other federal courts, save for the Foreign Intelligence Surveillance Court (FISC) as I wrote about on My NSA Records, regarding modernizing filings and public access to court documents. Stuff like “accept electronic filings,” and “if paper filings are necessary, 8.5″ x 11″ paper should be acceptable.”

The Supreme Court should be an example to all other courts of the right way to accept filings, and instead is the most obscure. Let’s hope that John has a moment to read my letter.

Open Letter to Chief Justice Requesting Supreme Court Rules Change (.pdf)
Corbett v. TSA – Petition for Certiorari (Updated) (.pdf)

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)

On This Four Year Anniversary, I’m Excited To Announce…

4th AnniversaryIt’s hard to believe that I’ve been working to roll back government abuse for 4 years, but today marks the anniversary of the filing of my first lawsuit against the TSA and the start of what now seems to be a lifetime passion for civil rights advocacy. With that in mind, to increase my efficacy as an advocate, I’m excited to announce that I am now officially a law student: Northwestern California University School of Law, Class of 2018.

California is one of the very few states to allow law school to be completed online, and NWCU’s 4-year, 100% distance learning law program will allow me to sit for the California bar and thereafter apply to the bars of most, if not all, other states. The tide is turning in favor of law degrees earned via Internet courses, with about a dozen schools offering all-online classes in California, William Mitchell in Minnesota offering a 50% online law degree, and many other schools across the country experimenting with putting at least a portion of their curriculum online. Law school will be a challenge: the time commitment is huge, the drop-out rate is high, and the bar pass rate is low, regardless of whether you attend an on-campus or online school. But if there’s anyone who can make this happen, I’m confident I can, and being able to do coursework while I travel makes this possible. I’ll be blogging about how things go, and today adding a new category, Law School, to the blog.

Tomorrow I’ll be announcing more exciting news, as my second petition for the U.S. Supreme Court’s review gets filed, and I share with you the amicus brief filed by a rights organization in favor of my petition for rehearing en banc before the 11th Circuit.

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)

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