Motion Filed In 1st Circuit To Enjoin TSA's New Mandatory "AIT" Screening (google.com) 129
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.)
Slowly (Score:5, Insightful)
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: (Score:1)
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?
People opted out because they were NOT fine with it.
Everyone else didn't care enough to opt out, which is so easy, I have to assume they really don't care.
Re: (Score:2)
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.
Re: (Score:1)
damned spell corrector (messer upper) fun should be fuss...
Re: (Score:3, Interesting)
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: (Score:2)
Actually, it does have force of law. 49 USC 114(v)(2)(A) [cornell.edu]: "A person is liable to the United States Government for a civil penalty of not more than $10,000 for a violation of a regulation prescribed, or order issued, by the Secretary of Homeland Security under an applicable provision of this title."
Re: (Score:2)
Once you start, they claim you can't stop. Courts have agreed. United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007).
Re: (Score:3)
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 littl
Re: (Score:2)
You can beat the rap but you can't beat the ride.
Re: (Score:2)
Leaving the airport after you passed security is way different than leaving midway through security.
Re: (Score:2)
People get arrested for no (legal) reason all the time. That's where the phrase comes from. The post claimed CAN'T as if the attempt would be physically stopped by the hand of God or something. They CAN physically do it even if it would be illegal.
It seems you are the inexperienced one.
Re: Slowly (Score:1)
What's crazy to me is this:
If I were trying to bring a weapon, I would definitely usenthe body scanner (or my bag).
The physical screening is far more likely to find something. A metal detector is too.
The imaging tech is very ineffective.
Re: (Score:3)
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: (Score:1)
thanks - too lazy to do it myself (Score:1)
Thanks. As one of the many people who are aghast at what is going on, but don't want to make a social/political fight my career, I appreciate that people like you do challenge the slide into authoritarianism.
Re: (Score:2)
Gladly done. (Wish I had more resources, but I do what I can.)
OP here (Score:5, Insightful)
Sai here (OP & person who filed this lawsuit). Feel free to ask if you have any questions.
Re: (Score:2)
did you read the comment you replied to? If yes, please ask a more specific question.
Re: (Score:3)
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 [s.ai] would answer your question?
Re: (Score:2)
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,
"Natural law" is as ridiculous a concept as "natural rights". Rights aren't natural, that's why we have to fight for them. Gravity is a natural law, even if it's also "only" a theory since we still haven't found a graviton, or what have you. You don't fight for it; if anything, you fight it. Rights are things we hope for, and have to protect. The argument over what is "natural" only obscures the discussion over what is "right" or "necessary".
Re: (Score:2, Interesting)
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: (Score:3, Informative)
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 [boingboing.net] and had a subsequent internal shitstorm. (Ho
Re: (Score:2)
Thank you for your part in the fight against encroaching authoritarians. We'll be cheering for you from our mothers' basements.
Re: (Score:3)
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 fl
Re: (Score:3, Interesting)
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 [youtube.com] (German w/ subtitles).
Re: (Score:2)
Perfect response. Thanks!
Re: (Score:2)
Sai here (OP & person who filed this lawsuit). Feel free to ask if you have any questions.
Bravo to you, sir, for standing up for your rights, and by extension, everyone else's rights as well.
I've always opted-out of the scanner on general principles and so far they've never tried to force me to use it. I can see that this is likely not to be the case the next time I fly. We'll see what happens...
Thanks (Score:2)
I just wanted to say thanks. I read through some of your website and I've watched about half of your TSA video and I sent you a donation.
I hope you win. This shit is ridiculous and extremely anti-American. I hope other people donate to you as well and don't just post some empty platitudes. I haven't flown since 1995 and after seeing this kind of shit I wouldn't blame anyone for avoiding the U.S.; Land of the free, indeed.
Re: Thanks (Score:2)
Much appreciated. FWIW, though this motion should be resolved quickly, for me at least, it's just one part of a much larger lawsuit. Will probably take years. Hopefully some sanity may eventually prevail â¦
Re: (Score:3, Interesting)
I think any machine capable of telling whether or not someone is circumcised [aetherczar.com] is a strip search under the 4th Amendment, regardless of whether it shows the image to a human or not.
Re:OP here (Score:4, Informative)
Being raped & tortured by the police [popehat.com] is only worth a 1.6 million dollar slap on the wrist [popehat.com] with no criminal penalties against the offenders... the 4th amendment seems to have fallen out of favor.
Re: (Score:3, Interesting)
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: (Score:3)
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: (Score:1)
I have permanent metal in my arm thanks to a biking accident. Last time I flew, just being near the machines when they were on made the metal caused me discomfort bordering on pain in my arm. Hate to think what being inside them would do. I opted for the grope, both ways, which the TSA really didn't want to do and took their time getting to me. I suspect now they can just say no, they will, especially since I'm not pretty female.
Until and unless the OP wins, I can't fly. Thanks TSA. The TSA, bringing more t
Re: (Score:2)
FUCK YOU AND FUCK YOUR SOPHISTRY! Terrorists aren't the dangerous ones; totalitarian cowards like you are the dangerous ones!
Re: (Score:3)
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 anot
Re: (Score:2)
Why do organizations think this is a magical phrase that makes everyone turn their brains off?
If it's optional, the victims can try to argue the front line workers out of it, which slows things down. They can also threaten the workers with personal suits and other difficulties, which the workers may not be sure the organization will defend them against.
If it's policy, the front line worker gets to just refuse to do things any other way than the policy. The victim knows that the worker won't be exercising d
Re: (Score:1)
Previously, anything that would show up on x-ray - e.g. lead or barium sulfate. Don't know whether they would work on the new millimeter wave scanners. (Anyone have a spare one lying around to test? :-P)
Expansion on a broken system (Score:3, Insightful)
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 (Score:4, Insightful)
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: (Score:3)
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
Re: (Score:1)
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.
The problem is the number of news reports of either people forgetting the weapon in a brief case and making a complete round trip without getting caught or the 95% success rate of red teams making it through TSA security once again without getting caught (carrying guns, knives, explosives).
Anyone that believes the TSA is successful at what they do .. just isn't paying attention.
Further more, the lines that the TSA creates are a wonderfully simple and predictable target.
Re: (Score:2)
Re: (Score:1)
If you think TSA is bad, just wait until private corporations get a pass on the constitution. You ain't seen nothin' yet.
Re: (Score:2)
Ironically, corporations would have fewer restrictions. 4th Amendment only applies to the government (or people acting on the government's behalf or directions). If it were a purely company policy to give everyone an ultrasound probe before boarding, unprompted by any government requirement, there'd be nothing illegal about it. (Of course, they also wouldn't be able to force you to do it, which the government can)
Re: (Score:2)
Re: (Score:2)
Here's an alternative: give up. Recognize the fact that 99.99999999999999% of travelers aren't, in fact, trying to do anything nefarious and that it's not worth shitting all over everyone's civil rights to find that 0.00000000000001% who are.
Re: (Score:2)
Plus, you're far more likely to be killed by a horse than a terrorist.
Re: (Score:1)
Absence of attempts outside of the one off of 9/11 is also not a positive indicator of the TSA's effectiveness. We were safe for decades with a far less expensive, less invasive, and more effective system. We changed it because some people pissed in their pants.
Policy Regulation (Score:4, Interesting)
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: (Score:3)
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: (Score:1)
FWIW, there's no evidence of congressional involvement. My personal guess is that it was just dictated by Peter Neffenger, the new head of the TSA.
I hate this type of post (Score:4, Interesting)
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 [s.ai], 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* [spamgourmet.com], 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 [google.com]. When the police decided unilaterally that recording them was illegal, it took an incident [wikipedia.org] 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 [makeyourlaws.org] in the manner of open source.
Cut him some slack, OK?
Re: (Score:1)
Thanks. :-) FWIW, I am in fact not a lawyer, though I am applying to law school this year, and I've managed to win a fair amount of legal proceedings without a JD.
So what's next? (Score:2)
Re:So what's next? (Score:4, Informative)
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) [google.com]). 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+ [google.com] or Twitter [twitter.com], or watch my TSA litigation page [s.ai] if you want updates. ;-)
Re: (Score:2)
Second, can we help? If so, how?
Re: (Score:2)
You're welcome. How to help:
a) Supporting me financially would be very appreciated (I'm broke and can't legally get paid for the time I spend on this even if I win the lawsuit). Patreon [patreon.com], Bitcoin [s.ai], PayPal [s.ai], physical check [s.ai].
b) I need pro bono legal counsel for this case [s.ai] and my BOS case [s.ai]. If you know lawyers who might be interested (or are one), email me.
c) Share. TSA HQ does pay attention to social and mainstream media, and the only two things that make them do things are bad PR and litigation.
d) Contact your sen
Re: (Score:2)
(Also on sharing, it may help to follow me on Twitter @saizai or Google+ +saizai, if you want to stay updated. I also send an aggregate email update about once a month to my Patreons.)
Re: (Score:3)
The TSA does not screen effectively, and never has. See http://www.cnn.com/2015/06/01/... [cnn.com] 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: (Score:2)
Re: (Score:1)
TSA does use sniffer dogs, though not a lot of them and not very widely. Neffenger (the new TSA head) told Congress he'd be expanding the TSA's sniffer dog program.
Re: (Score:2)
Cheaper, more effective methods (trained sniffer dogs, passenger interviews, locks on the cockpit door) are already well-proven
I agree with the others, but passenger interviews are more expensive, not cheaper.
Re: (Score:2)
They're also ineffective. Corbett is already suing to block them [profession...emaker.com] (Corbett v TSA, No. 15-10757-A 11th Cir). (Full case docs are in my gdrive archive if you're interested. See link on s.ai sidebar -> case law -> tsa / dhs -> corbett -> corbett v tsa no 15-10757-a.)
It's ongoing, in initial stages.
Re: (Score:2)
They're also ineffective. Corbett is already suing to block them [profession...emaker.com] (Corbett v TSA, No. 15-10757-A 11th Cir). (Full case docs are in my gdrive archive if you're interested. See link on s.ai sidebar -> case law -> tsa / dhs -> corbett -> corbett v tsa no 15-10757-a.)
It's ongoing, in initial stages.
They can be effective, c.f. Israeli airport security. However, they're manpower-intensive, time-consuming (when flying out of Ben Gurion it's advisable to arrive at 3-4 hours before your flight. If you are an Arab, make it 5+ hours) and very intrusive and invasive. We really, really don't want effective passenger interviews.
Re: (Score:2)
Let me rephrase: they're ineffective at finding weapons in any way attempted by TSA. The sort practiced by CBP is aimed at discovering drugs, immigration, and smuggling — not weapons. TSA isn't allowed to do that, though that is in fact the main thing that their attempts (e.g. BDO/SPOT) result in. (Source: 2011 TSA validation study on SPOT, which I have from FOIA [s.ai] but haven't yet released; also GAO's public study of SPOT [gao.gov].)
Whether El Al's version is effective is debatable, but in any case irrelevant, be
Re: (Score:3, Interesting)
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.
Re: (Score:1)
Re: (Score:2)
Your premise is incorrect on many levels.
First, your claim that the lawsuit is on the basis of a person's desire for 15 minutes of fame appears to be completely baseless. If you had to read the comments thread, the originator of the suit posts here [slashdot.org]. S/he explains the motives several different times. S/he does not ever state that he seeks fame from this. Instead, there are several principles that are outlined. Did you happen to read something that I didn't, or yours just a massive, unsupported assumpti
Re: (Score:1)
FWIW on pronouns: male or gender neutral [s.ai], please. Kudos for not assuming, though. :)
Re: (Score:3)
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 reaso
Re: (Score:2)
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.
Stop flying (Score:2)
Re: (Score:2)
Anyone who flies is promoting the system.
One of many reasons I don't fly. A lot of issues just go away when you refuse to participate. It's not an option for some people but it works for me.
Re: (Score:1)
TSA is already expanding to trains, busses, & highways. So that's not going to save you for long.
Re: (Score:1)
TSA is already expanding to ... highways.
Oh really? How is that going to work exactly?
Re: Stop flying (Score:3)
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.
Medical Devices Problem (Score:2, Interesting)
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
Re: (Score:2)
An insulin pump should need an inspection for explosive compounds so it's a pat down + extra no matter what.
Policy started 12/20 (Score:2)
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: (Score:2)
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.
I opted out both directions of my trip home for the holidays –both after 12/20.
The pat-downs were excessively long, and they insisted on going through their little script regardless of my repeatedly saying, "I know the drill—get on with it."
Just say no, don't go (Score:2)
Re: (Score:2)
Don't travel through or over the USA either, or TSA rules will apply to you.
New canonical link for this case (Score:2)
I've revamped the part of my website about my TSA litigation [s.ai].
The case with the pending emergency PI/TRO motion now has its own page. [s.ai]
Please use that as the canonical link from now on.
Response & reply filed; FOIA docs released (Score:2)
TSA response & my reply are now filed. And I've released some FOIA docs as a bonus.
http://slashdot.org/firehose.p... [slashdot.org]
Re: (Score:2)
They haven't stopped a single one, because according to their own "intelligence", there hasn't been a single real threat against domestic flights. But that's SSI (aka "fake classified"; 49 USC 114(r)). It was leaked when TSA fucked up by publicly filing Corbett's sealed brief [profession...emaker.com].
Compare:
Redacted [scribd.com]
Unredacred [scribd.com]
See also:
House oversight hearing [house.gov]
Joint staff report [house.gov]