Appeals Court Caves To TSA Over Nude Body Scanners

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Appeals Court Caves To TSA Over Nude Body Scanners

Posted by timothy on Wednesday September 26, 2012 @05:52AM from the privilege-of-free-movement-and-assembly dept.

OverTheGeicoE writes "The Electronic Privacy Information Center (EPIC) recently filed a petition to force the Department of Homeland Security to start its public comment period on body scanners within 60 days or stop using them entirely. The Court of Appeals for the District of Columbia has issued its ruling (PDF), and has refused EPIC's petition. DHS told the court earlier that it expected to have a formal rule proposal on body scanners by the end of February, so the court denied EPIC's motion on the expectation that public comment period would start by late March. TFA and this submission have a pessimistic headline on this ruling, but other sources seem to think the glass is half-full, and that EPIC in effect got what it wanted. Is this a victory or a defeat? Will the rulemaking process start on time, or will a TSA dog eat the proposed rule in late March and force further delay?"

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Sounds like defeat by Anonymous Coward · 2012-09-26 05:52 · Score: 5, Informative

If it means we still have the TSA and their nudie scanners then we all lose, whether we realize it or not.
1. Re:Sounds like defeat by arth1 · 2012-09-26 06:00 · Score: 4, Insightful
  
  Yes, we'll all lose, but the problem isn't nudity.
  The problem is that the TSA acts as an extended arm of the DHS, and as such are constitutionally bound to the 4th amendment.
  The border search exception does not apply to domestic flights, and the constitution always trumps federal law in the view of the Supreme Court, should there be discrepancies.
2. Re:Sounds like defeat by tilante · 2012-09-26 06:03 · Score: 5, Insightful
  
  Governing is a privilege, not a right. The government needs to abide by the rules of the road as set forth by the Constitution, or find another way to accomplish their ends. It's really that simple. Quit making excuses and just do it.
3. Re:Sounds like defeat by kiriath · 2012-09-26 06:03 · Score: 5, Informative
  
  So being seen naked / groped-by-strangers is a valid requirement for flying and we should all just get over it?
  You're a moron.
4. Re:Sounds like defeat by mr1911 · 2012-09-26 06:20 · Score: 5, Insightful
  
  OK, I'll feed the trolls today.
  
  Flying is a privilege, not a right.
  Having the government force you to submit to a search to complete your travel is a violation of several rights. Driving is "not a right" either. Should the government force you into a search before you get behind the wheel. By your logic, as long as walking is permitted all other modes of travel are available for infringement.
  
  Trust me, nobody really wants to ogle your naked outline.
  If that is all that was at stake, it would be a different conversation.
  
  It's really that simple.
  No, it is not. But you seem to be.
  
  --
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  Any offense taken to this post is at your sole discretion.
5. Re:Sounds like defeat by ZeroSumHappiness · 2012-09-26 06:30 · Score: 5, Informative
  
  Flying is a privilege, not a right.
  Wrong.
  
  Current US Code addresses air travel specifically. In 49 U.S.C. 40103, "Sovereignty and use of airspace", the Code specifies that "A citizen of the United States has a public right of transit through the navigable airspace."
  This comes out of the common law right to freedom of movement which includes the use of conveyances appropriate to the time. Our modern society operates on the assumption of a right to air travel.
6. Re:Sounds like defeat by Githaron · 2012-09-26 06:31 · Score: 5, Insightful
  
  By your logic, as long as walking is permitted all other modes of travel are available for infringement.
  If they start searching for all non-walking modes of transportation, why do you think they will stop at walking?
7. Re:Sounds like defeat by Anonymous Coward · 2012-09-26 06:53 · Score: 3, Insightful
  
  The problem is that voting is a right not a privilege. As such people don't bother to worry about things like "facts" when they vote.
8. Re:Sounds like defeat by isorox · 2012-09-26 06:56 · Score: 3, Insightful
  
  I'm convinced these full body scanners are less about security and more about ensuring wealth doesn't leave the country. When the shit hits the fan, people wanting to leave and take their fortunes converted into say diamonds, will not be able to take them with them.
  For years you could only take up to $10,000 in cash/valuables to a foreign country. Diamonds were the only way to take more. If these scanners proliferate that will be the end of that.
  Food for thought in our future police state.
  If you've got that much money you can hire a jet. Or take them across a land border.
9. Re:Sounds like defeat by vux984 · 2012-09-26 06:56 · Score: 3, Insightful
  
  Flying is a privilege, not a right.
  Please clarify. What does that even mean?
  How does one travel if every mode of transportation is a privilege that can be trivially revoked? Is travel then also a privilege?
  Is walking "right"? Or is it too a privilege?
  You need to abide by the rules of the road as set forth by the governing bodies, or find another way to travel.
  Are you alluding to the tired argument of needing a license to drive? And that a drivers license is not a right?
  Because I'm fine with that. But I don't need a drivers license to be a passenger in a taxi. I don't need to submit to government checks. I don't need to carry identification.
  Is taxi travel a priviledge? Can it be revoked?
  How exactly is plane travel different from taxi or bus travel? I enter a privately operated vehicle as a passenger, and I sit there.
  Trust me, nobody really wants to ogle your naked outline.
  What about my daughter's?
10. Re:Sounds like defeat by isorox · 2012-09-26 07:00 · Score: 4, Insightful
  
  the constitution always trumps federal law in the view of the Supreme Court, should there be discrepancies.
  Aren't you being a little naive?
11. Re:Sounds like defeat by DRJlaw · 2012-09-26 07:15 · Score: 4, Informative
  
  Flying is a privilege, not a right.
  Perhaps this is an unduly pithy response, but I'm compelled to say "citation needed."
  It is often said that driving is a privilege, and not a right. However, that particularly pithy remark has only been offered when someone wishes to operate a vehicle -- not merely to ride in a vehicle, and certainly not merely to ride in licensed commercial passenger vehicles.
  Your ordinary air traveler is not a pilot, and is not demanding the "right" to operate the aircraft. Nor is the government operating the aircraft and merely reserving the "right" to offer its services to whom it chooses. The government is exercising a police power to regulate, and potentially negate, travel arrangements made between two private parties.
  Finally, you may wish to review the actual "rules of the road" as set forth by the governing bodies. 49 USC 40103 states that "A citizen of the United States has a public right of transit through the navigable airspace," and complements that pesky thing referred to as the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). While reasonable restrictions are permitted (as in all aspects of even enumerated rights under U.S. Constitution), freedom of movement is not merely a privilege subject to the whim of the soverign.
  
  Quit whining and just go through it.
  The battle cry of the authoritarian. You shall not challenge the rules; no reasonable person would have an opinion different than mine; I will not abuse the rules despite them giving me and my agents a clear opportunity to do so.
Slashdot vs Impartiality by mumblestheclown · 2012-09-26 05:55 · Score: 5, Insightful

Impartial: "Appeals Court Rules that..."
Slashdot: "Appeals Court Caves To TSA Over Nude Body Scanners"
I have no dog in this fight, but the idea that some court "caved" to an agency rather than ruling on the merits of the case based on their particular principled and reasoned views (which you or I might not happen to personally like or agree with) sounds like conspiracybabble that should have no place on slashdot.
1. Re:Slashdot vs Impartiality by DanTheStone · 2012-09-26 06:04 · Score: 3, Insightful
  
  You might not know this, but we the Internet share many views. One is that the TSA scanner stuff is ineffective, a waste of money, and potentially dangerous.
2. Re:Slashdot vs Impartiality by X0563511 · 2012-09-26 06:13 · Score: 5, Insightful
  
  There's no need to be impartial when one side is clearly wrong.
  
  --
  For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...
Bad Track Record by Githaron · 2012-09-26 05:59 · Score: 4, Insightful

What happens when the TSA does not turn in their formal report in February?
1. Re:Bad Track Record by kiriath · 2012-09-26 06:07 · Score: 4, Insightful
  
  It'll get moved back to the February after... duh...
2. Re:Bad Track Record by arth1 · 2012-09-26 06:16 · Score: 4, Funny
  
  What happens when the TSA does not turn in their formal report in February?
  Why, the DoJ Inspector General police force will promptly confiscate all scanners, and the DHS Inspector General will take authority over the TSA during senate investigations of the TSA overstepping their authorities.
It's the media's support by jd659 · 2012-09-26 06:04 · Score: 5, Insightful

The problem is not the specific ruling, but rather the media’s brainwashing of population that body scanners somehow increase the security. Most people do not know that you can opt out of body scanners and the general thinking now became that the scanners are good.

I fly about three times a week and I have never gone through a body scanner. A little known fact is that once more people opt out of body scanners, the security lines grow quickly and the scanners get closed in favor of faster metal detectors. As long as the people are OK with body scanners at the airport, there’s very little that can be done in a court.

--
There's no such thing as "illegal download"
1. Re:It's the media's support by interkin3tic · 2012-09-26 06:21 · Score: 4, Insightful
  
  Not sure the media is "brainwashing" people into accepting them so much as "Most people have accepted them and none of the media really cares to beat a dead horse, they'd rather focus on which politician said which soundbite, because that's what people pay attention to."
  
  It's not a conspiracy, it's just apathy.
2. Re:It's the media's support by garcia · 2012-09-26 07:11 · Score: 5, Interesting
  
  I was out in Orlando for work in April and LA in May. At MSP (my home airport) and MCO we had a choice in scanner methods, in LA we didn't. I refused to use the scanner, instead opting for the manual pat down.
  At MCO I was through the "traditional" scanner method quickly, 10 minutes faster than my coworkers who got their chromosomes scrambled. In LA, I was 30 seconds behind my coworker.
  It's not fucking worth it to use the scanners. IMO we should all be opting out and forcing the TSA to work harder to get the job done. If people stood up against the intrusion it would be far more effective than the courts telling them to do X and them ignoring it.
  They can't as easily ignore an airport full of VERY angry passengers waiting in long lines to do it the "hard" way.
3. Re:It's the media's support by jd659 · 2012-09-26 07:44 · Score: 5, Insightful
  
  The opt out process is not bad at all in the US. I always do that. The airport in Amsterdam may get nasty, I had to spend five minutes to explain that I do not want to go through a body scanner (I was the only one opting out).
  
  Regardless of that, every time I go through security I have my video cameras ready along with the printouts from TSA site authorizing the use of video equipment:
  http://www.tsa.gov/travelers/airtravel/taking_pictures.shtm
  
  I take it as my civil duty to record any irregularities.
  
  --
  There's no such thing as "illegal download"
Re:defeat my ass, sounds like outrage by dubbreak · 2012-09-26 06:17 · Score: 4, Funny

Never once has the agent patting me down seemed to enjoy the process...
We'll if you're the average slashdotter I can't see how they would enjoy it.

"Sorry sir, I'm going to have to move your beard aside so I can..."

--
"If you are going through hell, keep going." - Winston Churchill
Breaking the rules [Re:Sounds like defeat] by Geoffrey.landis · 2012-09-26 06:26 · Score: 5, Insightful

Flying is a privilege, not a right.

Well, yes, that is true; however, the government (which is making these rules) belongs to us. Do we chose to have intrusive searches using mostly-unproven technology? What our choice in the matter of giving away our privacy in the battle between fear and freedom?

You need to abide by the rules of the road as set forth by the governing bodies, or find another way to travel. It's really that simple.

And, likewise, the TSA needs to "abide by the rules as set forth by the governing bodies, which, as far as I can see requires a period of public comment, something that the TSA has failed to do. So, if somebody is "failing to abide by the rules," it apparently is the TSA

Quit whining and just go through it. Trust me, nobody really wants to ogle your naked outline.
Whether you, anonymous coward, choses to think that somebody else's privacy concerns, or safety concerns, are valid or not is not your business

--
http://www.geoffreylandis.com
Name change... by JestersGrind · 2012-09-26 06:34 · Score: 5, Funny

As a result, the group is changing their name to Electronic Privacy Information Center, For All Is Lost.
We keep getting closer ... by damn_registrars · 2012-09-26 06:47 · Score: 3, Interesting

... to what Dilbert predicted back in 2004

--
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
Fact: the court caved by DeadCatX2 · 2012-09-26 06:50 · Score: 5, Informative

I suggest reading up on this case a bit...
In November 2010, EPIC sued DHS because the body scanners suck. http://news.slashdot.org/story/10/11/05/158250/epic-files-lawsuit-to-suspend-airport-body-scanner-use
In July 2011, a court found that DHS had improperly deployed the scanners by not providing a period for public comment. The court allowed the scans to continue on the condition that they have a public comment period. http://news.slashdot.org/story/11/07/17/0143233/Court-Approves-TSA-Body-Scans-But-Calls-For-Public-Comment
By July 2012, there had STILL not been a public comment period. http://tech.slashdot.org/story/12/07/11/2113239/dhs-still-stonewalling-on-body-scanning-ruling-one-year-later
And here we are, September 2012, and the appeals court says look, I know DHS was told to do public comment and it's been over a year and they still haven't done it, but they promise they're really going to do it this time in March 2013, so we're going to take their word for it even though they ignored the previous court order for a public comment period.
Any characterization other than "cave" fails to describe the situation in historical context.

--
:(){ :|:& };:
Civics: What a joke by wcrowe · 2012-09-26 07:03 · Score: 4, Interesting

I wish I could sue my old high school for wasting my time with civics class. It was there I was taught that we had three branches of government, and that part of the job for each branch was to keep an eye on the other two branches in a system of "checks and balances". Clearly this was just a lot of sentimental BS.

--
Proverbs 21:19
Sample survey by jd659 · 2012-09-26 07:14 · Score: 5, Insightful

Public opinion gathering? Huh? Here’s a survey:

"Would you jeopardize the lives of our children and the American citizens by asking us to remove Advanced Imaging Technology scanners from the airport?”

[NO! I want to keep people safe] [yes, allow terrorists blow up the planes]

--
There's no such thing as "illegal download"
Re:defeat my ass, sounds like outrage by mellon · 2012-09-26 07:27 · Score: 3, Informative

Oh please. This is a lame argument against these scanners. There are two good arguments against them:
1. They don't work.
2. They are more likely to kill you than a terrorist.
Do you honestly think anyone wants to see your junk on one of these things? Have you seen the images they produce? _Not_ chubby-inducing.