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

[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.

OP here

[saizai]

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

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

[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.

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.

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: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.

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?