Motion Filed In 1st Circuit To Enjoin TSA's New Mandatory "AIT" Screening (google.com)

New submitter saizai writes: TSA has made electronic strip search mandatory whenever they feel like it. "TSA is updating the AIT PIA to reflect a change to the operating protocol regarding the ability of individuals to opt out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations in order to safeguard transportation security." I've filed for an injunction against new TSA policy on mandatory AIT, in my general lawsuit challenging TSA's "orders". The court says TSA will respond to my motion by Tuesday. I'll reply immediately. Hopefully will have it put on hold before January. (Note that "AIT" stands for "Advanced Imaging Technology," the term TSA applies to walk-through body scanners.)

Comments

Slowly

[Anonymous Coward]

Slowly tightening their grip. Where's all those people who said it was fine because you'd always be able to opt out? Called us crazy for saying it was a slippery slope?

Re:Slowly

[daq man]

I went through one of these in August. I didn't want to and the TSA staff there gave me no option. I could have kicked up a fun but I'd stood in line for twenty minutes to get to the front and everyone behind me was well and truly pissed enough. Not to mention that my son was with me and having dad lead off in irons wasn't an image I wanted to leave behind. Also, I was on the way home after my own father's funeral.

For thirty years I was a frequent traveller, my family lives in the UK and I live in the USA. I am also a US government contractor so I flew to Europe and Asia yearly on business. Since the mid 2000's I've almost stopped flying at all. Sad really since I missed the last years of dad's life. Stupidly, despite my ticket being paid for by the US government and travelling on government business I was often selected for "extra screening", before anyone thinks "profiling" I am a white and of European descent. The whole thing just pissed me off. So don't say "didn't care enough to opt out" more like blackmailed and shamed into it.

Re:Slowly

[Jason Levine]

They've slid down the slope a bit and are now saying that the TSA is only doing this to protect against terrorists and that you're free not to fly if you don't like it.

When the TSA expands to other methods of transportation, they'll slide down the slope a bit more and defend the TSA (and the government) with new arguments all the while denying that we are all sliding down the slope.

Re:Slowly

[saizai]

It's pretty common for TSA grunts to violate their policies and try to intimidate people against doing what they're allowed to. And TSA claims that it can issue civil penalties (~$10k) if you exit screening once you've entered. The only case I know of where they actually pursued that was John Brennan, though.

Re:Slowly

[saizai]

That's not what I was citing it for. No US court has ever ruled on a mandatory-AIT policy, because it's never been the policy before (in the US).

Read the comment I was responding to: "Except there is no violation for leaving the airport."

Then read my cite:
"The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by "electing not to fly" on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. 44901, all that is required is the passenger's election to attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315, 92 S.Ct. 1593; 49 C.F.R. 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine."

That directly supports what I said: "Once you start, they claim you can't stop. Courts have agreed."

PS Insults do not make your argument better.

OP here

[saizai]

Sai here (OP & person who filed this lawsuit). Feel free to ask if you have any questions.

Re:OP here

[saizai]

did you read the comment you replied to? If yes, please ask a more specific question.

Re:OP here

[Anonymous Coward]

First off, this is a good fight. It's a good thing you are doing, and I hope you succeed. A lot of us are disturbed by the direction of things over the last 14-odd years, and we're doing the best we can to halt the slide in our own ways.

My question would be: do you not worry that talking about it online is unwise given a pending lawsuit?

Re:OP here

[saizai]

Thanks. :-)

Fair question, but with a simple answer: I've not said anything online that I haven't already said in court and/or isn't very blatantly obvious. I don't disclose pending litigation strategy or the like that might be damaging, nor anything private, privileged, etc.

I think it's beneficial to raise public awareness. Part of why they responded to me at all was because TSA's PR people (howdy, Curtis!) read the 2013 BoingBoing article about my SFO experience and had a subsequent internal shitstorm. (How do I know? Several hundred pages of FOIA docs — ones I haven't published yet.)

Re:OP here

[saizai]

I've not watched the video yet; will try later. But the only things I've ever read about "natural law" have seemed to me to be fundamentally philosophically unsound, and basically just ways to bootstrap "I like / don't like this" into a claim of objective morality. I reject that philosophy.

Perhaps my manifesto on civil obedience would answer your question?

Re:OP here

[saizai]

I think any machine capable of telling whether or not someone is circumcised is a strip search under the 4th Amendment, regardless of whether it shows the image to a human or not.

Re:OP here

[SumDog]

That's awesome. It's crazy how every other country in the world said the backscatter x-rays were unsafe, and most EU states (except for the UK) banned them entirely. Then the US switched to millimetre wave machines, yet never once acknowledging the safety issues with the x-ray systems!

I know personally that in Australia, you cannot opt out. If you try, they tell you that you have to wait 24 hours before you can come in and board the plane. And no, there's no refund for your ticket and no rescheduling the flight from the airline. Nothing about waiting 24 hours makes anything more secure. It's basically to force people to go through the scanner or risk missing their flight and having to pay for another ticket.

I've read a lot and it seems like the millimetre wave scanners don't have any serious safety issue (although long term exposure in humans is really impossible to gauge). Even so, they're totally ineffective. I can't find it now, but one of the heads of German airport security said they had a huge false positive rate. I've often experienced this myself. In Australia it said I had something in my left pocket. That pocket was completely empty. Nothing even behind or around it at all

These machines are multi-million dollar failures that provide no additional security. They're about as good as those bomb detectors that one dude sold that were nothing more than random parts stuffed in a box.

Good on you and good luck in your lawsuit.

Re:OP here

[saizai]

Re. Australia: do you have a pointer to the law or regulation that says so? (First I've heard of it.)

As far as I know, at least US, Canada, UK, & EU law all permit opt-out if you submit to "patdown". However, IANAL, especially for non-US law.

You might enjoy this video of a German guy demonstrating he could smuggle an entire bomb past the scanners (German w/ subtitles).

Re:OP here

[DaHat]

Being raped & tortured by the police is only worth a 1.6 million dollar slap on the wrist with no criminal penalties against the offenders... the 4th amendment seems to have fallen out of favor.

Re:OP here

[saizai]

Yeah. Popehat's collection of such stories is pretty disturbing.

And on this case, the APA & 49 USC 46110 don't allow me to recover damages (and Kay v Ehrler says I can't recover for my time spent on it), so I won't be getting a single cent from this litigation.

Possibly from suing them over what happened to me at BOS / SFO (see s.ai/tsa), but that's a whole different thing, and probably will take years.

Re:OP here

[khallow]

If you object so strongly to a rectal probe that you call it "rape", I don't understand why you won't allow imaging methods where nobody touches you.

I'm going out on a limb here, but maybe anal penetration isn't the only reason to object to intrusive and privacy destroying tyranny. There could be other downsides too. /sarc

Re:thanks - too lazy to do it myself

[saizai]

Gladly done. (Wish I had more resources, but I do what I can.)

Expansion on a broken system

[ssufficool]

They haven't been able to point to a single instance where the TSA has prevented an attack. It's all security theater. So what do we do? Make it more invasive. More government for no tangible benefit.

In all, TSA security procedures are all reactive, not proactive. Failed shoe bomb, everyone now takes off shoes. Mixed liquid bombs, no liquids over X ounces. No sharp thingies. etc... etc...

The only improvement has been procedures on locking the pilot cabin. Sound, sensible security practice.

It seems one of the primary purposes of our government, to keep us safe from foreign threats, has jumped the shark. Instead of a comprehensive and well thought out system, we have many moving parts once again scrambling to make us feel safe. You know, that system we tried to fix after 911? Federal, state and local law enforcement all operating behind their own walls and not sharing. Now we are rebuilding that same broken system with the DHS and TSA.

Re:Expansion on a broken system

[ShanghaiBill]

They haven't been able to point to a single instance where the TSA has prevented an attack.

The TSA's goal is not to catch terrorists in the act, but to deter them from even trying. I am not saying that the TSA is effective, I am just pointing out that the absence of attempts is not a negative indicator of the TSA's effectiveness.

Re:Expansion on a broken system

[OhPlz]

There was a recent undercover test conducted by the feds where the majority of restricted items they tried to sneak through the checkpoints actually made it through. Counting actual terrorist incidents may not be effective, but those undercover test results are scathing. My own inner-cynic thinks that the TSA is a politicians gift to the labor unions and all the high tech scanners is likewise a gift to the companies that manufacture and maintain them. The government is operating its own economy with our money.

Policy Regulation

[sandbagger]

I have a policy that my customers pay me on time. Unfortunately I tend to get strung along for 90 days. Since my policy doesn't have the force of regulation I tend to have to suck it up.

I suspect that the nudie scanner that doesn't work is entering the polygraph zone. The people who buy them want everyone else to believe that these contraptions work. In the TSA's case millions have been spent on these things so I presume some congress critter has decided to make them mandatory to justify the expense.

Re:Policy Regulation

[NormalVisual]

I suspect that the nudie scanner that doesn't work is entering the polygraph zone.

I suspect you're right. I get tagged in the millimeter wave machine almost every time I walk through, when there's nothing there it should be triggering on. It's a multi-million dollar boondoggle.

Re:'We have a policy'

[sumdumass]

Because established policies route around singling specific people out or explain actions that if independent could create liability. It doesn't always remove liability but that is the intent. It is more or less establishing plausible deniability.

So suppose you have a business in the inner city and don't want to hire the locals. You create a policy of requiring a hogh school diploma and drug testing. Either one will stop a lot of people from applying for the jobs. If someone is qualified, you institute another policy like working swing shift or weekends to disinterest others. Or let's say you think all minorities are shoplifters, you make a policy where people follow them around while in the store except your policy is to pick random people of all types. Or suppose you're a government of some town and you want to pull over people for driving while black. You create a policy to stop people and give them gift certificates or something for good driving - except now that questionable lawful contact is made, you you can ask what they are doing in your town or question about drugs and so on.

A policy also shifts blame from those following it and places it on the organization which created it.

Re:I also have a policy

[Antique Geekmeister]

The TSA does not screen effectively, and never has. See http://www.cnn.com/2015/06/01/... and numerous other tests of TSA procedures.

They have no right to waste so many billions of American dollars, and so many hours out of so many people's lives, for such demonstrably poor results.

Re:So what's next?

[saizai]

Depends on exactly what the 1st Circuit rules. I very strongly doubt they would rule I don't have standing (which would be the worst case outcome for my ability to prosecute this).

It's possible they might not want to allow an emergency PI/TRO, in which case it'll get delayed on fuller briefing, probably ~1-6 months. They also might deny preliminary injunction and TRO, without prejudice to an ordinary motion for injunction, in which case we're talking 6-12 months.

It's also possible that they'll rule that yes the TSA violated the APA (again) but they'll let 'em get away with it anyway (like in EPIC v DHS, 653 F3d 1 (D.C. Cir. 2011)). That would be the worst case outcome on substance. I'd probably try for SCOTUS cert petition if that happens.

We'll find out in about a week, anyway, so no need to speculate too much. Follow me on G+ or Twitter, or watch my TSA litigation page if you want updates. ;-)

Re:I also have a policy

[saizai]

FWIW, I actually very much don't want to have personal fame. I like having a semi-private personal life. I filed this because it's illegal and I actually believe in upholding civil rights. If you're too cynical to believe m on that, I doubt there's anything I can say that'd convince you.

Medical Devices Problem

[Anonymous Coward]

My spouse's insulin pump (that she obviously can't just do without) cannot be passed through an x-ray machine. Nor can it go through a body scanner. This is all according to its manufacturer. Every time we fly through airports using body scanners she needs to opt and do the pat down. It's an invasive, slow, and frustrating experience, but at least it doesn't put her in medical jeopardy. Making her pass through the scanners potentially causing her pump to deliver too little or too much insulin while she's 10,000 ft in the air does.

I hate this type of post

[Okian Warrior]

I have a policy that my customers pay me on time. Unfortunately I tend to get strung along for 90 days. Since my policy doesn't have the force of regulation I tend to have to suck it up.

I hate this type of post.

It's defeatist and dispiriting to the reader. By advocating no action ("suck it up"), it supports and encourages loss of freedom, authoritative control, and hopelessness.

It's also uncreative - there's *lots* of things we could do, both as a group and individually, to try to change the situation.

You don't have the will to fight, so go drown your despair in drink. Don't being down everyone else as well.

The OP took the trouble to file suit against the TSA. Looking at his website, he might be a rare case of a lawyer doing an open source 'kind of thing.

I haven't seen a lot of this type of "open source good for the community" from the legal profession. I'm not saying that there's *none*, but it's very rare compared to the number of lawyers around.

Engineers are pretty generous with their time. There's a ton of open source software and designs for hardware, people answering questions, things you can make and modify and use.

A lot of lawyers I talk to claim to be unemployed or under-employed. Looking through the myriad number of social abuses we come across at Slashdot, I've always wondered why some of them don't put their spare time into fixing some of our problems using the court system. If it's their own time and they are otherwise unemployed, it wouldn't be very expensive.

They'd also get a big boost of popularity (and business) from having defended a rights issue. When the police decided unilaterally that recording them was illegal, it took an incident to take it to court, and not a pair of lawyers who had set up a situation, with proper witnesses and affadavits.

Anyway, this guy appears to be doing some legal things in the manner of open source.

Cut him some slack, OK?

Re:Lies and More Lies

[saizai]

This isn't a partisan issue. Majority of both blues and reds have wholeheartedly supported all the TSA legislation since inception. The only ones who didn't were the minority of socialists and libertarians.

Policy started 12/20

[saizai]

Update: according to an anonymous but credible source, this policy was started on 12/20. Will find out more once TSA files its official response to my motion on Tuesday.

Re:I also have a policy

[JustAnotherOldGuy]

My policy is I disregard people who object to something solely to get 15 minutes of fame. If TSA didn't screen and a terrorist brought down a plane with a personal explosive device the same people would sue because they should have made AIT mandatory.

I'd agree with you, but from the moment the TSA began operations they've been a dismal failure. And I mean dismal- they've stopped no one, not a single terrorist, and they've stopped no plots or plans, again, not a single one.

Meanwhile they've assaulted/accosted thousands of ordinary people just trying to get from point A to point B. They've beaten and humiliated people, sexually molested others, and harassed many innocent travelers just because they had the power to do so. They've tased people for no reason, confiscated literally tons of items that posed no threat, and they display a breathtaking lack of common sense (like taking away a kid's Buzz Lightyear toy because it "looked like a gun" Really? That thing looks like a fucking gun?).

They've missed screening for and detecting weapons (guns, knives, etc) up to 97% of the time when they've been tested. The employees themselves admit that what they do is basically a joke that accomplishes nothing. They miss fake test bombs and explosives on a regular basis, over and over again. Meanwhile they're busy confiscating 3 oz bottles of shampoo and baby bottles full of breast milk.

So no, I'm sorry, but at this point the TSA has been a total failure and has shown quite clearly that they serve no useful purpose.

Re: Stop flying

[saizai]

Google "VIPR" to see the first generation of it. That's just the start; they're actively expanding their asserted jurisdiction, to cover *all* methods of travel.