11th Circuit Court On TSA Search Methods: Compared To A Terrorist Attack, Invasive Searches Aren't Invasive

from the 4th-Amendment-no-match-for-a-decade-of-fear-based-policies dept

Jonathan Corbett has been trying for years to get the courts to declare the TSA's pre-flight searches -- specifically body scanners and full-body patdowns -- a violation of the Fourth Amendment. So far, this has gone nowhere, with a lot of the blame falling on Corbett himself.

Spending a great deal of time filing in improper venues has cost Corbett his most recent lawsuit at the hands of the 11th Circuit Court. The two-year gap between his filing with the Miami district court and the federal court system had led to his case being thrown out mainly on procedural grounds [pdf link]. Despite being instructed where to file back in 2010, Corbett didn't actually file in federal court until 2012, far surpassing even the most generous readings of filing limitations.

Corbett failed to heed that advice, despite admonitions by the Administration, a magistrate judge, the district court, and our Court that we had exclusive jurisdiction over his petition. He instead pursued his Fourth Amendment challenge in the district court for nearly two years. Courts of appeals have excused a petitioner’s delay when the Administration caused a petitioner’s confusion, id. at 960, or when a petitioner unsuccessfully attempted to exhaust administrative remedies, Reder v. Adm’r of Fed. Aviation Admin., 116 F.3d 1261, 1263 (8th Cir. 1997), but Corbett has not alleged anything of the kind. His conduct—the “quixotic pursuit of the wrong remedies”—cannot excuse his delay.

A "quixotic pursuit" it was, including a direct petition (which was refused) to the Supreme Court. But it wasn't completely futile. During his lengthy stay with the district court, sealed, unredacted documents filed by the government were accidentally uploaded by a court clerk -- documents that revealed the TSA itself doesn't believe terrorists are focused on bringing down airplanes.

But it's the argument following "Alternatively, the Screening Procedure Is a Reasonable Administrative Search" that deals directly with Corbett's complaints. As is indicated in the subtitle, the TSA's pre-flight screening methods are both an "administrative search" (i.e., not requiring individualized suspicion) and "reasonable." But "reasonable" compared to what?

The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett. Airport screening is a permissible administrative search; security officers search all passengers, abuse is unlikely because of its public nature, and passengers elect to travel by air knowing that they must undergo a search. Hartwell, 436 F.3d at 180. The “jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane” outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down.

Corbett argues that the TSA could use less intrusive methods than patdowns and full-body scanners, but the court states that the Fourth Amendment does not demand a "least invasive" effort. It also doesn't demand the system be foolproof -- which the TSA's definitely isn't. It only requires a balance of the public's safety and its rights. An administrative search, especially with current full-body scanners that use a generic body shape when scanning flyers, does that.

While the court's decision is more or less reasonable, it does indicate that there will not be a successful civil liberties challenge to the TSA's tactics anytime soon. Much of the discussion only deals with balancing the Fourth Amendment against worst-case scenarios, rather than the mundanity that is the millions of un-hijacked, unmolested flights that occur every year… year after year.

“[T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.” Hartwell, 436 F.3d at 179; see United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. . . . [T]he potential damage and destruction from air terrorism is horrifically enormous.”); Singleton v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979) (“The government unquestionably has the most compelling reasons[—]the safety of hundreds of lives and millions of dollars worth of private property[—]for subjecting airline passengers to a search for weapons or explosives that could be used to hijack an airplane.”); see also United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002).

Finally, the federal government's unwavering belief that secret documents are still secret even when the public has already seen them is obliged. Despite being published in full by a clerical mistake, the court instructs Corbett to honor the purely symbolic sealing of previously exposed documents and denies him release from his non-disclosure agreement.

The Administration filed under seal the proprietary information—an operations manual for an advanced imaging technology scanner—because the owner of the information marked the manual with the warning that customers “shall not disclose or transfer any of these materials or information to any third party” and that “[n]o part of this book may be reproduced in any form without written permission” from the company.

We also grant the motion to seal the sensitive security information because Corbett has no statutory or regulatory right to access it. Sensitive security information is “information obtained or developed in the conduct of security activities[,]... the disclosure of which TSA has determined would... [b]e detrimental to the security of transportation.”

"Detrimental," except that some of this information was already exposed and yet, planes kept flying and no terrorist activity was detected.

So, rather than seeing a growing skepticism towards the government's claims that the TSA's screening procedures are the only thing standing between us and certain disaster, the court seems to be embracing them with just as much enthusiasm, 13 years after the 9/11 attacks. It cites various attacks that were thwarted (by passengers, no less) as all the evidence that's needed to support the government's claims, while apparently ignoring the TSA's own assertions that planes are no longer terrorism's favorite target. Corbett did a lot to sabotage his own chances of a win. The court's decision here just ensures it will be much more difficult for whoever follows in his wake.

Filed Under: 11th circuit, 4th amendment, jonathan corbett, pat downs, reasonable search, searches, tsa

Accidentally Revealed Document Shows TSA Doesn't Think Terrorists Are Plotting To Attack Airplanes

from the but-the-body-scans-continue dept

Jonathan Corbett, a long-time vocal critic of TSA body scanners, has been engaged in a lawsuit against the government concerning the constitutionality of those scanners. In the course of the case, the TSA gave him classified documents, which he was ordered not to reveal. In using some of that information to make his case, he needed to file two copies of his brief: a public one with classified stuff redacted, and the full brief under seal, for the government and the courts to look at. Just one problem: someone over at Infowars noticed that apparently a clerk at the 11th Circuit appeals court forgot to file the document under seal, allowing them to find out what was under the redactions... Included in there is the following, apparently quoted from the TSA's own statements:

“As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fundraising, recruiting, and propagandizing.”

Elsewhere, the TSA appears to admit that "due to hardened cockpit doors and the willingness of passengers to challenge hijackers," it's unlikely that there's much value in terrorists trying to hijack a plane these days (amusingly, that statement is a clear echo of Bruce Schneier's statement criticizing the TSA's security theater -- suggesting that the TSA flat out knows that airport security is nothing more than such theatrics).

Elsewhere, in the redacted portions, the TSA is quoted as admitting that "there have been no attempted domestic hijackings of any kind in the 12 years since 9/11."

As Corbett notes in his filing, the entire basis for the nude scanners is that they were somehow necessary to stop terrorists with explosives from getting on planes. Yet, as he makes clear, the TSA knows that there's been little threat of any such attack for quite some time. He also details how the machines are not very good at tracking down explosives, and pretty much everything that has been caught with these machines (such as guns) could be easily found via traditional metal detectors. Further, as noted above, other protections that have nothing to do with the nude scanners are the main reason (which the TSA admits) that terrorists have moved on from targeting airplanes.

Amazingly, it appears that the government forced Corbett to redact the revelation that the TSA's own threat assessments have shown "literally zero evidence that anyone is plotting to blow up an airline leaving from a domestic airport." Corbett argues that this shows why the searches are not reasonable under the 4th Amendment. Corbett also points out that about the only thing the machines seem useful at catching are illegal drugs -- but, as he notes, that's "irrelevant to aviation security." Sure, the government may like the fact that it catches illegal drugs with these machines, but the TSA can't argue it needs the machines for "terrorism" when it knows that's not true, and then tries to keep them just because it finds some narcotics...

While it still seems unlikely that Corbett's lawsuit will actually succeed, he's right that these revelations mean that, at the very least, Congress should be investigating why the TSA insisted that it needed these machines to find terrorists that it now admits aren't actually plotting to attack airplanes.

Filed Under: body scanners, jonathan corbett, naked scanners, terrorism, tsa

Slow Down TSA Lynch Mob: That Naked Scanner Expose Video Is Exaggerated & Old News

from the be-real dept

So, a video made by a TSA-critic and blogger named Jonathan Corbett has been making the viral video rounds, supposedly showing how "anyone can get anything past the TSA's scanners." Now, I've been a huge critic of the TSA's scanners and the TSA itself. I think the entire security process is a joke and a form of security theater. I think the naked scanners are a huge waste of taxpayer money and potentially dangerous. But... I'm somewhat surprised at how quickly people just believed what was said in Corbett's video. You can watch the video here: First off, I was surprised to hear that the "revelation" was that by putting something on your side, the machines wouldn't notice it. That's not a revelation at all. It was one of the conclusions that came out in a research report published in 2010, which got a fair amount of publicity at the time. Among various vulnerabilities for the scanners, the report noted:

The images are very sensitive to the presence of large pieces of high Z material, e. g., iron, but unless the spatial resolution is good, thin wires will be missed because of partial volume effects. It is also easy to see that an object such as a wire or a box- cutter blade, taped to the side of the body, or even a small gun in the same location, will be invisible. While there are technical means to mildly increase the conspicuity of a thick object in air, they are ineffective for thin objects such as blades when they are aligned close to the beam direction.

In other words, strap a knife to your side, and perhaps the machine won't spot it. We heard that years ago. So, nothing new here.

Plus, I'm pretty sure that the machines now take images from multiple angles, which would rule out this vulnerability. On top of that, Corbett bases his claim on a couple of sample images that are black and white -- and uses that to claim that a black object on your side will not show up against the black background. Once again, I'm pretty sure his info is now completely out of date. The TSA has been upgrading the scanners so they no longer show the "nude" picture. Just last month we showed an image of what the new machines show: And they show this in public, since there's no more nudity to contend with. Notice that there's a white background... and it's not a scan anyway, but a detector system that highlights points to check out.

Now, it is true that Corbett was able to get through the machines with a metallic box in his side pocket, and that's his proof. He does this twice. While, again, I'm not impressed by the machines, I don't think this is "proof" in the sense that Corbett believes. First of all, official tests show that there's a ridiculously high error rate with these machines -- they let through "bad stuff" all the time. So, I agree with Corbett that the machines are a complete waste and should be done away with, but I don't think one guy going through the scanners twice without getting stopped for a little metallic box in his pocket... is absolute proof that anyone can get through without getting stopped.

Of course, it seems worth pointing out that a metal box is not a dangerous object, and the point of the machines (so we're told) is to stop threatening objects from getting through -- not just metallic objects. So it's possible that the TSA agents saw this thing in his pocket and immediately saw that it wasn't something dangerous. Corbett's test was whether or not the scanners detect metal. But they're not metal detectors, so the test itself is flawed.

So, while I don't agree with the TSA's response to this video in which "Blogger Bob" somewhat angrily snaps back about how important TSA scanning is, I don't think Corbett's claims are that convincing and I'm surprised at how much press it's been generating. Yes, the scanners are probably pointless, and it's all security theater, but that doesn't mean we should all stop thinking through the details on videos that potentially show some weaknesses in these machines.

Filed Under: defeat, jonathan corbett, naked, scanner, security, security theater, tsa