1st Circuit Injunction Re: TSA's New Mandatory AIT Search Rule Fully Briefed (s.ai)

saizai writes: I just filed my reply to the TSA's opposition to an emergency motion for preliminary injunction and temporary restraining order (PI/TRO) against the TSA's new policy that arbitrarily mandates some people to go through electronic strip search ("AIT"). Case website here (will be kept updated). Court order expected soon, though impossible to know for sure.

I've also released 3 FOIA docs (see 2015-12-30 update), which I submitted as exhibits:

• MD 100.4 2012-01-25 Transportation Security Searches (11p, full) — showing TSA's expansion to "bus, train, [and] other public conveyance"
• SPOT validation study Vol 1 Ch 4 — Descriptive analyses — summary of sources for items (1p) — showing 90% of what they find is immigration and drug related, not weapons
• SPOT validation study Vol 3 App F — Supporting tables — prohibited items data (2p) — giving breakdown list of "prohibited items" they find

See previously:

• Motion Filed In 1st Circuit To Enjoin TSA's New Mandatory "AIT" Screening
• TSA Body Scanner Opt-out No Longer Guaranteed

Comments

Actual bravery

[Anonymous Coward]

You are no mere "Internet Warrior"; you are someone who is expending your time and effort on defending the Constitution. You have my respect.
How long until you're on the "no fly" list or some surprise police home invasion happens? I honestly hope that there is no retribution against you, but I'm wary.

Oh hell yes

[Sowelu]

This is exactly what I wish we'd see here more often. Please keep submitting details, IDGAF if this winds up on the front page constantly.

Re:Oh hell yes

[Darinbob]

Top killer in the US: heart disease. Number two: cancer. Over 40 thousand die from diabetes in the US a year. The terrorist threat? Miniscule. Gun violence kills vastly more people than terrorist attacks. Suicides have an alarmingly high number of deaths each year, dwarfing terrorism. Even deaths from falling in the home in one year outnumber all terrorists deaths in the US in the last 15 years.

The TSA screening is a political issue only, it is not about making the US safer or about providing effective security screening. If we are spending money to make the US citizens safer then we're doing it wrong.

Re:Thank you.

[Anonymous Coward]

To whom should I donate money to ensure that the fight against the TSA continues until the TSA is just a bad memory?

Summary

[Etherwalk]

Someone who is not harmed lacks "standing" to bring a case in federal court, because the constitution requires there be an actual case or controversy--federal courts lack the power to issue advisory opinions. For a constitutionally protected interest, the plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract). The injury can be either economic, non-economic, or both.

The TSA is arguing the plaintiff can't bring the case because he hasn't been body-scanned. The plaintiff is arguing only the TSA knows whether they will body scan him and they haven't told the court, so you have to assume they will. The plaintiff also goes on about plaintiff's protected liberty interest in international travel, but that doesn't address the question of whether the harm to plaintiff is the kind of concrete, particularized, actual, and imminent harm necessary to give the plaintiff standing to sue. Unless a lot more of that was in the complaint, the judge isn't going to find it sufficient to issue the injunction.

There are some merits arguments too, but IRL judges care a LOT about standing. This does not prevent someone from filing another lawsuit in the future, and there may be some opportunity to further the argument in the main part of the lawsuit after the injunction fails to issue.

Re:Summary

[phantomfive]

The TSA is arguing the plaintiff can't bring the case because he hasn't been body-scanned. The plaintiff is arguing only the TSA knows whether they will body scan him and they haven't told the court, so you have to assume they will.

Specifically, the plaintiff already has a ticket from Canada, to the US, and on to England (he is a US citizen). He claims that the TSA knows in advance whether they are going to body-scan him or not (the TSA apparently didn't disagree), because Delta is required to transmit passenger information to the TSA. I have no idea if it's a valid claim or not.

Re:Summary

[saizai]

I do in fact have a ticket of that sort. I refuse to go through scanning. If they won't let me board because of that, then I will have much better standing than I do now, but there's no way to guarantee that, and there's chilling effect from the mere threat.

Re:Thank you.

[jaffray]

Well, supporting Sai's Patreon is a decent place to start. I've been tossing him $10/mo for a while now, it's a pittance but at least it's something. He's been shockingly effective for someone who's just One Random Guy with practically no support. https://www.patreon.com/saizai

Re:Thank you.

[hawguy]

I don't understand what the big deal is. The TSA want to scan you in an effort to make flying safer. Isn't this a good thing?
What's there to be worried about? That a TSA agent will see you've got a tiny dick? Because I'm sure this is why TSA agents join up - they've all secretly got a fettish so looking at peoples dicks in gainy black and white.

This reminds me of my first job. I had a boss that was petrified I would spend all day reading everyone else email if I was given access to the production mail servers to do some security checks on. It took a lot on convincing to explain to him that

Do you have any support for the statement that TSA scanners make flying safer? Many security professionals doubt the efficacy of the scanners and pretty much the entire TSA problem even though it costs billions in direct costs, and billions more in indirect costs.

They make a lot of money form this, thats MO.

[Anonymous Coward]

When I worked at Ebay we found that the TSA makes a LOT of money from selling things they steal from people.. and it often went unreported and into TSA agents pockets, that's a big MO.

Re:They make a lot of money form this, thats MO.

[Sir Holo]

It's good to hear that my suspicion was right all along.

I've a number of hand-made or specialized scientific hand-tools confiscated by the TSA. In every case, I have rendered the object non-functional. For example, bending my expensive tweezers completely out of shape before handing them over. (Tweezers are not knives, BTW.)

A TSA Rep insisted that the laptop of an acquaintance be put in the checked luggage, and was not allowed to be carried on (this was several years ago). Guess what? It disappeared magically between departure and destination – with no "TSA opened your bag" note inside, either.

Re:Thank you.

[saizai]

And thanks for that. :-)

There's also Bitcoin if people want it. http://s.ai/btc

Re:Thank you.

[saizai]

TSA has been supported by a majority of reds & blues since inception. Only real progress has been made through litigation.

Wish it weren't so, but it is.

Re:Thank you.

[Darinbob]

The scanning is not shown to be safe.
Some of these are X-rays, proven to not be safe, maybe a tiny number of medical X-rays a year are ok, and doctors and dentists will keep track of how many they give you to avoid too much. The big concern here is that they're subjecting their security agents to tons of this every year and they're not wearing dosimeters to how how much exposure they get. With even one dental x-ray you are given a shielded cover over your chest and the technician leaves the room. I trust the medical professionals over the TSA.
Some of these are not x-rays but high frequency electromagnetic radiation, over 30GHz. Medical effects of this are unknown. This is not about RF allergy fears but basically the effect of this technology has not been well studied and is being rolled out fast as a panicked reaction.

This scanning also shows no purpose. They are not finding weapons with these scanners, though they do find contraband. A real terrorist is going to get past these scanners. The only thing this does is provide security theater - fooling the gullible public into thinking that something is being done, and please keep voting for your clueless representatives to approved this. These agents are not highly trained, they're not the best of the best, this is a relatively low paying menial labor job. Other countries with actual threats do not have the style of security we have in the US, they prefer to have effective security instead.

There is also the very real matter of creeping expansion. TSA wants to expand to trains and buses if they can. They want a police state.

Re:OP & litigator here

[jaffray]

John Brennan did pretty much that, stripping naked in protest of invasive TSA procedures. He was arrested for indecent exposure, taken to jail, and fined $1000 by TSA for "interference with screening personnel." He was found not guilty on the indecent exposure charge, the fine is still in appeals 4+ years later, but I'm pretty sure his legal expenses are in five figures.

I wouldn't for a moment discourage you from this plan, but please do be aware of what you're getting into, and the extent to which they will fuck with you.

Re:Thank you.

[saizai]

Re. safety, see here. Tl;dr: it's neither been proven safe nor unsafe in this context; a priori there's reason to believe it's safe short-term, but there've not been any long-term studies. It isn't ionizing radiation (unlike the backscatter x-ray), and isn't strong enough to outright burn (like a microwave), but who knows.

However, I don't care if it's safe, because I view it as a strip search. See my reply (link in OP), p. 9.