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Supreme Court Won't Hear Body-Scanner Appeal 170

Posted by samzenpus
from the scan-me dept.
stevegee58 writes "After a long string of legal setbacks, the case brought by Jonathan Corbett challenging TSA's use of full body scanners and enhanced pat-downs has come to an end. Today the Supreme Court declined to hear the case, so current TSA practices will stand. The TSA started allowing the use of the advanced imaging technology in October 2010."
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Supreme Court Won't Hear Body-Scanner Appeal

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  • well, (Score:5, Informative)

    by Anonymous Coward on Monday October 01, 2012 @01:12PM (#41515141)

    god damn it!

    • Re:well, (Score:5, Insightful)

      by ganjadude (952775) on Monday October 01, 2012 @01:14PM (#41515183) Homepage
      I hate to say it but I kind of figured that nothing would come of it. It seems the same thing always happens.

      step one - enact something that pisses off damn near everyone

      Tell the angry mob that you will look into it and something will be done

      quietly drop it when the mass forgets about it because OHHHH SHINEY!
      • Re: (Score:3, Informative)

        by pdabbadabba (720526)

        From what I've read, there's really nothing to see here. The original suit was dismissed because it was filed in the wrong court. It was filed in FL district court when the law requires that it be brought before the DC Circuit or the circuit in which he resides (he resides in Michigan). But instead of just bringing his suit in the correct court, he has simply appealed the dismissal all the way up to the supreme court. Of course SCOTUS didn't take it; the lower courts were obviously correct.

        • Re:well, (Score:5, Informative)

          by tsaoutofourpants (2615595) on Monday October 01, 2012 @02:06PM (#41515905)
          Hello, filer of the lawsuit here. There's perhaps a little bit more to read than what you've read... the first page of my SCOTUS petition or 11th Circuit appellate brief would have cleared things up. :) The brief summary is that my lawsuit was filed in District Court quite intentionally: District Court is the only federal court that has a trial by jury, as well as discovery and witnesses as-of-right. After filing, the TSA invoked a law that was not designed to send challenges to agency "orders" to the US Court of Appeals. The idea behind the law is that some administrative agencies have proceedings with administrative law judges that legitimately should be challenged in the appeals courts. For example, if you try to bring a knife on a plane, the TSA has administrative law judges to assess a civil penalty against you, and you can appeal that decision to the appeals court. However, the TSA has now successfully argued that ANYTHING THEY WRITE DOWN CONSTITUTES AN "ORDER" THAT CANNOT BE THE SUBJECT OF A JURY TRIAL. Think about that for a second: the gatekeepers of our constitutional rights are supposed to be *the people*. Instead, it is now a group of men that are appointed by the President, who happens to be the guy who appoints the head of the TSA who started this mess. My fight against the TSA will continue on in the appeals court, which is the only good news here. You may read more at: http://tsaoutofourpants.wordpress.com/2012/10/01/supreme-court-declines-to-consider-whether-nude-body-scanners-deserve-a-trial/ [wordpress.com]
          • Re: (Score:2, Insightful)

            by Anonymous Coward

            sir, first of all, thanks for your tireless work on this.
            secondly, best nickname ever!
            thirdly, where can I contribute to your work, please do a kickstarter/indygogo on this.

            • Re:well, (Score:5, Informative)

              by tsaoutofourpants (2615595) on Monday October 01, 2012 @02:32PM (#41516225)
              Thank you, and you're quite welcome! There's a donate button on my blog: http://tsaoutofourpants.wordpress.com/ [wordpress.com] I'm considering trying Kickstarter/Indygogo, but for now, just PayPal. :) --Jon
              • Why is the TSA not performing an illegal act when they examine the junk of a minor? Or photograph a naked child? Is this for the children?
                • Re:well, (Score:5, Insightful)

                  by tsaoutofourpants (2615595) on Monday October 01, 2012 @04:12PM (#41517577)
                  "Examining the junk" of an adult, or photographing the same naked, isn't traditionally a lawful governmental objective either. But it becomes more obvious how wrong it is when you think of the children, elderly, handicapped, breast cancer survivors, rape survivors, etc., that have to deal with this nonsense.
                  • "Examining the junk" of an adult, or photographing the same naked, isn't traditionally a lawful governmental objective either. But it becomes more obvious how wrong it is when you think of the children, elderly, handicapped, breast cancer survivors, rape survivors, etc., that have to deal with this nonsense.

                    All's fair in the war on Terra, or so it seems.

          • Re:well, (Score:5, Informative)

            by pdabbadabba (720526) on Monday October 01, 2012 @02:23PM (#41516117) Homepage

            Hi there, thanks for replying. I am a lawyer, so I should probably refrain from commenting on the merits of your case too specifically for fear of accidentally giving "legal advice."

            I'll just say/ask these few things:

            1) It remains the case that the matter on appeal to the Supreme Court was the jurisdictional question, not the merits of your complaint (and the complaints of many others) against the TSA.

            2) Regardless of what court you brought suit in, it was always going to be a judge who resolved legal questions like, say, whether TSA's procedures were unconstitutional. A jury would only be tasked with factual questions like figuring out, if it were disputed, what TSA's procedures actually were.

            3) Do you have plans to refile in the 6th or DC Circuit?

            4) Good luck on your lawsuit.

            (It goes without saying, but I'll say it anyway: I am a lawyer, but I am not your lawyer. I know not nearly enough about you or your case to provide you advice that you could rely on. I am also not admitted to the bar in your jurisdiction so I couldn't be your lawyer even if I wanted to.)

            • Re:well, (Score:5, Informative)

              by tsaoutofourpants (2615595) on Monday October 01, 2012 @02:34PM (#41516263)
              0) It's ok... I don't accept legal advice from strangers anyway. ;) 1) Yes. 2) Yes, but there are many questions of fact. For example, are the scanners effective (since effectiveness is a part of the balancing test in deciding if a search is reasonable)? See my video on that: http://tsaoutofourpants.wordpress.com/2012/03/06/1b-of-nude-body-scanners-made-worthless-by-blog-how-anyone-can-get-anything-past-the-tsas-nude-body-scanners/ [wordpress.com] 3) 11th Circuit. The wires have mistakenly reported me as a Michigan resident since I used a Michigan mailing address on court documents. I live in Miami Beach, FL. 4) Thank you. :)
              • 0) It's ok... I don't accept legal advice from strangers anyway. ;)

                That is an excellent policy. Have you done any research about the procedures a Circuit Court will/would use in answering a factual question like the one you point out?

            • by Rich0 (548339)

              2) Regardless of what court you brought suit in, it was always going to be a judge who resolved legal questions like, say, whether TSA's procedures were unconstitutional. A jury would only be tasked with factual questions like figuring out, if it were disputed, what TSA's procedures actually were.

              Interesting. Mind pointing to where in the US Constitution that is written down? I just see that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."

              Granted to really benefit from the letter of the Constitution he would need to actually commit a crime and be charged with it, and that wouldn't be advisable since courts have been ignoring the letter of that amendment for ages

              • It's not from the constitution, but it is a distinction that predates the constitution in Anglo-American law. You can see some hint of it in the Seventh Amendment (which is the amendment you need in this case anyway):

                In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

                So, the short answer is that it isn't in the constitution, but it was the traditional role of a jury as it was understood by the founders.

                • by Rich0 (548339)

                  Yup. Actually, the way the right to trial by jury is applied to day is rather astonishing.

                  If I sue you for $21 the courts will make the lives of 12 people miserable to weigh the outcome of a case which clearly will have a trivial outcome.

                  If the DA charges me with a crime whose maximum sentence is 5 months in prison, I'll be told I can't have a jury decide on the case. The same applies if I am to be fined $100 with the likelyhood of my auto insurance company raising my rates by $500/yr. And, more recently

                  • What you say about criminal trials without a jury is emphatically not true. It may be that the large majority of criminal defendants are persuaded to waive a jury trial and plead guilty, but I am unaware of any case where someone has been deprived of one against their will, and I would be shocked if you could cite me a single case where such a thing has happened. Can you?

                    As I've mentioned here before, I work for a federal court and we are very very scrupulous about informing defendants of this right before

                    • Qualification: we do imprison those accused of international terrorism (e.g., the detainees at Guantanamo Bay) and other offenses involving certain national security interests (I'm thinking of Bradley Manning) without trial. While this is extremely serious (and, in my view, an embarrassing betrayal of our constitutional values), it is not at all a common phenomenon and not one generalizable to "ordinary" American criminal law. It also seems not to be the sort of thing you had in mind when you wrote "If the

                    • by Rich0 (548339)

                      Lewis v. United States, 518 US 322 (1996)

                      The Supreme Court held that you can only demand a jury trial if you face at least six months in prison on a single charge regardless of how they add up in the aggregate.

                    • Well you've got me there -- and it looks like the basic rule that you have no right to a jury trial for 'petty' crimes goes back much farther than 1996. I had no idea about any of that. I've asked around and most of my fellow law-school graduates seem to have known about it. So never fear, it is taught in law schools, just not to law students who never take criminal procedure (and don't worry, I'm not a criminal lawyer). This is why you don't take legal advice from strangers on the internet (and, of course,

                    • by Rich0 (548339)

                      I think there is also a danger in relying on the precedent that petty crimes did not involve juries in the common law era.

                      Back when the constitution was penned the court was the building in the middle of town, and minor cases were heard by the local magistrate who chances are knew every person in the town. If the guy just rubber-stamped every silly little money maker like the modern speeding ticket then he would probably end up being tarred and feathered. The whole culture around the judicial system for m

          • by ganjadude (952775)
            Thank you for the work, I will be following you more from now on and I hope to see some results in the future, If funding is an issue, I hope that you will "kickstarter" things
      • Well, the newest iPhone did just come out...
  • by Elbart (1233584) on Monday October 01, 2012 @01:13PM (#41515157)
    Why?
    • by Mashiki (184564) <mashiki@gmail. c o m> on Monday October 01, 2012 @01:17PM (#41515227) Homepage

      Via drudge: [drudgereport.com]
      http://www.contracostatimes.com/politics-government/ci_21672132/supreme-court-wont-hear-cases-body-scanners-gay?source=rss [contracostatimes.com]
        The Supreme Court won't hear a Michigan man's attempt to challenge the use of full body scanners at airports.

      The high court on Monday refused to hear an appeal by Jonathan Corbett, who wanted to challenge the Transportation Security Administration's use of full body scanners and/or enhanced pat downs at airport security lines. Federal courts in Florida refused to hear his lawsuit, saying it could only be filed with the federal appeals court in Washington, D.C. The 11th U.S. Circuit Court of Appeals upheld the dismissal, and the Supreme Court refused to reopen the case.

      The TSA started allowing the use of the advanced imaging technology in October 2010.

      • I read this blurb as well, and it sounds like the issue under appeal was the Florida federal court's dismissal based purely on jurisdiction. Ok, refile in D.C. I don't understand if there's more to it than that - anyone know more? There's no mention of case # or anything in this blurb.

      • by PortHaven (242123)

        How come jurisdiction seems to play here, but it always seems like patent suits are filed in that Texas jurisdiction that keeps patent trolls well fed?

    • Because, citizen. Stop resisting!

  • by Anonymous Coward

    You, the people, are fucked.

  • by danbert8 (1024253) on Monday October 01, 2012 @01:14PM (#41515179)

    About as useful as the Constitution for determining what is allowed by the government...

    • by Tasha26 (1613349)
      R.I.P due process!
    • Maybe they don't *really* have checks and balances, but it's the illusion of having them that counts.

  • Just stand over there citizen. We'll get to you shortly.

  • and choose to ignore them. Along with the rest of the majority of Americans.
  • This is a Sign... (Score:3, Insightful)

    by Anonymous Coward on Monday October 01, 2012 @01:31PM (#41515429)

    That extensive exercising of the 2nd Amendment will be required to turn back the encroachment upon our liberties.

    • by luther349 (645380)
      sad but true. the day i see a tsa check point on a highway is the day you see dead tsa agents.
  • by SuperCharlie (1068072) on Monday October 01, 2012 @01:34PM (#41515465)
    Seems like laws and bills and crap should logically go through the Supreme Court *before* being enacted.. This passing laws which are unconstitutional and then having them in effect for years and years until they finally make it to be judged *while they are still enforcing them* seems pretty stupid from the whipped persons point of view. Yea yea yea.. it would take years to pass crap and the backlog would be crippling.. and you say that like its a bad thing...
    • by dkleinsc (563838) on Monday October 01, 2012 @01:56PM (#41515769) Homepage

      Seems like laws and bills and crap should logically go through the Supreme Court *before* being enacted.

      So you want to give veto power to 5 unelected people who have a lifetime term of office? I understand the instincts, but this seems like a really bad idea.

      • Re: (Score:3, Insightful)

        by jedidiah (1196)

        It's 9 people and THEY ALREADY HAVE THAT POWER.

        By design, the SCOTUS is no less powerful than any other branch of the government. Complaints about "activist judges" are a Big Lie propaganda ploy intended to neuter an important part of the government meant to balance the rest.

        Yes. 9 appointees should have that much power. They were intended to. Probably to balance out the influence of politicians that constantly have to campaign for re-election and finance same.

        • by dkleinsc (563838)

          It's 5 people because 5 votes are all that's needed to create a 5-4 decision.

          I'm not saying judges shouldn't have power, but the value of having to have somebody bring a case is that it allows them to only focus on those situations where there is a potential problem.

        • 5 people makes a majority opinion that decides the law, however. I'm sure that's what the parent poster was getting at.
      • by Mitreya (579078)

        So you want to give veto power to 5 unelected people who have a lifetime term of office? I understand the instincts, but this seems like a really bad idea.

        1. They already have that power. Their decisions shape the US to a much greater degree than the president who has actual veto power (health care certainly got decided by supreme court). They do have to wait until someone challenges the law, but how much of a deterrent is that?

        2. Our elected president is not using the veto power he has despite promising that he would (e.g., the illegal wiretapping immunity which Obama swore to veto during his campaign). So again, I don't see what we have that much to lo

    • You'd give an unelected board of lifelong appointees the power to approve or reject all laws passed by congress? That sounds like a terrible idea. They wouldn't be restricted to dealing with it in a chronological order. They'd be able to fast-track laws they liked and bury laws they didn't.

      At the current moment in history, I do think the supreme court justices are generally more worthy than your average congressman. Certainly more informed on what the constitution means. But if you give the position
    • The courts are specifically prohibited from acting unless there is a "case or controversy". Every branch of government needs a check on its power, and that's the check on the judiciary.

    • Seems like laws and bills and crap should logically go through the Supreme Court *before* being enacted.. This passing laws which are unconstitutional and then having them in effect for years and years until they finally make it to be judged *while they are still enforcing them* seems pretty stupid from the whipped persons point of view.

      "The life of the law is not logic it is experience." --- Holmes.

      Limiting your decisions to "cases and controversies" has three great advantages:

      The issues are framed by parties who are genuinely in conflict.

      You get to see how see how "Separate but Equal " plays out in the real world.

      Advisory opinions are to a court what papal infallibility is to a church. There is no graceful line of retreat. No legitimate way to reopen the debate. That is what made the Dred Scott decision so disastrous..

  • time to face facts (Score:5, Insightful)

    by nimbius (983462) on Monday October 01, 2012 @01:41PM (#41515561) Homepage
    and conclude that had the supreme court heard the issue, it would probably have just ruled in favour of the government.
    and had it ruled against the government, the TSA and cur->administration() would have ignored it.

    The best option at this point is to select "alternative screening" whenever you go through the airport. Refuse the private screening as this only benefits the TSA by allowing it to hide the dissent against this technology. Avoid engaging in smalltalk, even if solicited, during the pat down. I generally stand tall, and fix my vision into the crowd of passengers entering screening.
    • by dkleinsc (563838)

      The best option at this point is to select "alternative screening" whenever you go through the airport. Refuse the private screening as this only benefits the TSA by allowing it to hide the dissent against this technology.

      The best option is to not fly, let the airlines know exactly why, and encourage others who dissent against this policy to change their habits as well. If the airlines start losing big money because of the TSA's practices, they'll bribe^H lobby to change it.

      • by Aryden (1872756)
        Until there is a viable alternative to flight, this isn't going to work. Also, any viable alternative to flight will then be subjected to this very same sort of security theater. See the TSA trying to implement airport security in train stations and roads.
    • I generally stand tall, and fix my vision into the crowd of passengers entering screening.

      I'm too busy trying to keep an eye on all my unguarded stuff left up for grabs -- I guess that goes for people stuck in the naked booth, too.

    • by Mitreya (579078)

      The best option at this point is to select "alternative screening" whenever you go through the airport.

      That's a clever plan (which I use), but it is only good until "alternative screening" is available. What if they declare that opting for the pat down alternative supports the terrorists?

      Avoid engaging in smalltalk, even if solicited, during the pat down.

      The workers certainly do not make the policy, so what is the point of ignoring them?

      • Then opt out entirely. Also, learn to fly. The general aviation loophole will likely remain open indefinitely, because that's how many of the elite travel.

        • by gottabeme (590848)

          General aviation should not be considered a loophole but just as basic a privilege as driving a car.

          However, the cost of avgas and insurance nowadays make general aviation practically an elite option, even if for a lesser class of elites. It wasn't that way years ago.

    • The best reaction during the alternative screening is to moan and act like you enjoy it too much. Make it as uncomfortable for them as they've made it for everyone else.

    • by Solandri (704621)
      When the SCotUS declines to hear a case, they don't give a reason why. The reasons can range anywhere from "Well duh, obviously the lower court was right" as you claim, to "We really don't know, but would like it and other similar lawsuits to kick around the lower courts some more to build up more opinions before we take a look at it." It's highly unusual for the SCotUS to take up the first case of its type to reach them - that usually only happens when there's a blatant violation of the Constitution in a
  • Legal Barriers Aside (Score:5, Interesting)

    by ohnocitizen (1951674) on Monday October 01, 2012 @01:49PM (#41515651)
    There may have been a legitimate reason for refusing to hear the case, though with the current makeup of the court there is no reason to suspect their hearing the case would have gone well.

    Instead let's take this as an impetus to get serious about tackling the TSA's abusive methods.

    PR: Publicly boycott air travel as much as possible. When you do travel, avoid airports with the scanners, and opt for public pat down screenings as much as possible if you must use those airports. Do this to slow down the lines, and to let other passengers see you (and thus dampen their enthusiasm for flying). Take out ads in local papers and targeted ads online attacking the TSA and its methods. Promote and share videos and stories that illustrate these abuses.

    Legislation: Call your congress critters and let them know how you feel about the TSA. Work to make the TSA a featured issue in the campaigns you can vote in. Get in touch with the lobbyists who represent businesses dependent on air travel (especially airlines), and get them to fight the TSA for economic reasons.

    Good luck!
  • by gestalt_n_pepper (991155) on Monday October 01, 2012 @01:57PM (#41515777)

    is once more heard across the land.

  • by tgd (2822) on Monday October 01, 2012 @02:02PM (#41515853)

    I think, in the best interest of the safety and security of the Supreme Court judges, its probably best they require everyone -- including the judges -- to use the full body scanners to enter the Supreme Court building.

    As a pinnacle of our republic, not taking its security seriously is an insult to the institution of the Supreme Court and the United States of America.

  • More at 11.

    It still surprises people that the federal government grants itself more power, year after year, and only affirms that power, year after year?

    SCOTUS is part of the Federal Govt, of course it will protect the federal govt.
  • by Murdoch5 (1563847) on Monday October 01, 2012 @02:45PM (#41516411)
    The funny thing about the TSA is that the rules sound like they were written by grade 1 students. They are comically horrible, I mean in some cases they even cause harm or damage and in others they just cause inconvenience. Shouldn't a system designed to protect / improve security also improve quality of life and travel? I was denied taking medication with me after being searched, I guess I could of somehow smuggled a chemical lab onto the plane and turned the pills into a powerful explosive ......... The TSA should write a book, "How not to implement security".
  • This in my opinion is one of the 2 main flaws that our founders left us with. The supreme court can simply refuse to hear a case that has made it all the way to their door.

    Now i wouldn't want them to be bogged down by minor issues, but if a case makes it thru all the appeals and is a constitutional issue, they should be required to hear and rule on it.

    Being able to pick and choose, makes them more powerful than the other 2 branches combined, when it should be a check/balance system instead.

  • by erroneus (253617) on Monday October 01, 2012 @06:53PM (#41519357) Homepage

    ...the balance is negative.

    We no longer have any checks and balances. At every turn, the government claims it has no requirement to address public concerns and does not need to follow its own processes.

    As instances like these continue to mount, every government employee places themselves into further jeopardy from the top to the bottom. TSA workers (of which I was once one) who continue to cite that they have bills to pay and are only following orders will faith the most convenient wrath of nutbags out there who will do anything ranging from nude protests to verbal and even physical assaults. This will escallate unless it is addressed. Things I dare not say will happen unless the government begins to once again listen to the people they are supposed to be representing.

  • about the bottomless pit of money-waste called the TSA is... that their efforts are a complete waste. Basically, the über-expensive hardware doesn't work.

    The checked-in luggage scanners have a detection rate of - at best - no more than 60%.
    The carry-on luggage scanners have a detection rate of 80%, provided the terrorist doesn't hide this weapons disassembled inside other stuff. Then it drops to near 0%.
    The old portal metal detectors are quite good - they have a detection rate of near 100%, but both gu

What this country needs is a good five dollar plasma weapon.

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