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The Courts Government Privacy Security Transportation United States

1st Circuit Injunction Re: TSA's New Mandatory AIT Search Rule Fully Briefed (s.ai) 122

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:

See previously:

This discussion has been archived. No new comments can be posted.

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

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  • Thank you. (Score:1, Interesting)

    by Anonymous Coward

    I'm doing a fair amount of disclosure as well over the next few days, albeit via journalistic channels, with regard to joint activities undertaken by certain federal agencies and private sector entities. It's good to know there are a few other folks willing to stand up these days. Keep it going, my friend. -PCP

    • Re: (Score:2, Interesting)

      by 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?

      • Re:Thank you. (Score:5, Informative)

        by jaffray ( 6665 ) on Wednesday December 30, 2015 @08:14PM (#51212723)

        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 [patreon.com]

      • You shouldn't have to spend a dime. What is needed is the vote to kick out the politicians that give the TSA life. Until that happens we just have to assume the majority is okay with it. If we have to buy votes, we're doing it wrong. And it just won't work.

        • by saizai ( 1178155 )

          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.

          • Wouldn't it be cheaper just to sue poor people who vote for corrupt politicians? They'll have no way of fighting back. You can walk away with a summary judgement.

    • by Anonymous Coward

      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 mai

      • by hawguy ( 1600213 )

        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.

      • by Anonymous Coward

        That's why, fucktard.

      • Re:Thank you. (Score:5, Insightful)

        by Darinbob ( 1142669 ) on Wednesday December 30, 2015 @10:30PM (#51213315)

        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.

        • by saizai ( 1178155 )

          The x-ray ones are no longer used by TSA (or so thy claim). It's all millimeter wave now. I know of no proof one way or the other whether MMW scanners are safe long-term. They don't produce ionizing radiation, and aren't strong enough to burn, but that's not entirely convincing. (And even if it's safe, that's no answer to the 4th Amendment concerns.)

          • Oh, I hadn't heard that they stopped using the x-ray scanners.

            The millimeter wave machines put out less radiation than the airport's radar, does the radar concern you? I have never heard of a study tying harm to millimeter wave machines, but I also haven't heard of studies being performed on them at all. As you are more keyed into this I am sure, have there been any studies that you have heard of?

            • by saizai ( 1178155 )

              Re. safety, see here [flyertalk.com]. 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.

            • by kmoser ( 1469707 )

              The millimeter wave machines put out less radiation than the airport's radar, does the radar concern you?

              Nobody gets closer to the radar than, say, 1/4 mile. I'd be concerned if I was forced to walk directly in front of the radar, even at lower doses.

      • It doesn't matter what they *want* - it only matters what they can *do*, and time and time again it's been shown that the TSA's actions are entirely ineffective. It's security theatre at it's finest, a pointless waste of time and money for everyone involved.

        That's why we are 'worried' about it.

        • The funny thing about it is that they were formed to replace the private security that the airlines used to hire, which was more effective than the TSA.

  • Actual bravery (Score:4, Interesting)

    by Anonymous Coward on Wednesday December 30, 2015 @06:46PM (#51212169)

    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.

    • by saizai ( 1178155 )

      You're welcome.

      TTBOMK I am not on any TSA list yet. I'm almost insulted. ;-)

      (Almost certainly on NSA's lists though. Howdy, NSA.)

  • Oh hell yes (Score:5, Insightful)

    by Sowelu ( 713889 ) on Wednesday December 30, 2015 @06:54PM (#51212223)

    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.

    • Please keep submitting details, IDGAF if this winds up on the front page constantly.

      you dont give a fuck? no, Janice in accounting don't give a fuck. [youtube.com]

  • Summary (Score:5, Informative)

    by Etherwalk ( 681268 ) on Wednesday December 30, 2015 @07:08PM (#51212309)

    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 (Score:4, Interesting)

      by phantomfive ( 622387 ) on Wednesday December 30, 2015 @07:40PM (#51212537) Journal

      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.

    • by saizai ( 1178155 )

      Pretty reasonable summary of the standing issue. The liberty interest part doesn't go to standing; it goes to irreparable harm, which is a factor for getting a preliminary injunction.

      Yes, I can't prove that the TSA will ultra-special-select me under their new secret rule. Nobody can. I can just prove they've done it before, they could have but did not deny it, and that creates presumption. And also that there is chilling effect.

      I've got about as good standing as someone can have short of having actually bee

    • So if it can't be proven, it's ok. Force the passengers to drink a yellow liquid, and the courts will say it's ok because no one knows what the liquid is and they can't stop it until someone proves a link? The problem is that it will be nearly impossible for anyone to prove harm by these machines. Even with industrial spill accidents these cases are usually settled out of court to avoid class action suits rather than any solid link being shown. We didn't win any cases against Tobacco companies for decad

  • Does anyone know what the official UK policy on this is? I tried to refuse to go through one of these scanners once, but had no luck, there was no alternative. Either go through the scanner or go home.
    • by Anonymous Coward

      In the US you are compelled to complete screening once you enter the line, so you can't say 'no thank you' and leave. You're going to be screened. It makes some sense as a malicious person could just keep going through the line until they get the scenario they want, but then it makes the laws about your choices more important.

      • by saizai ( 1178155 )

        Correct. You have the right to avoid it, but only if you do so before you enter screening.

        Don't know UK law.

    • You can opt-out and get an (enhanced) hand search. If you decline, you are escorted landside and can't fly.
      (If the officers actually comply with the regulations is a different question.)

      From the "Security Scanners Direction 2015", Annex C, Part 14:

      An individual who has been selected to be screened by security scanner may opt out of being scanned but only if the individual being screened agrees to be searched by an alternative screening method, including at least an enhanced hand search in private. That

      • As an aside, this should be the similar across the European Union as Commission Regulation (EU) No 1141/2011 states:

        [...] by providing passengers with the possibility to undergo alternative screening methods, this Regulation, together with the specific implementing rules adopted pursuant to Article 4(3) of Regulation (EC) No 300/2008, respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including respect for human dignit

  • by Anonymous Coward on Wednesday December 30, 2015 @09:03PM (#51212967)

    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.

    • 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 ma

  • Feel free to ask if you have any questions.

    • Just a comment.

      I 'opted out' of the cancer-scanner at LAX in December. It took 15 minutes for a "male pat-down" to appear, and the pat-down took about 10 minutes, plus five of waiting around while they gathered up my things.

      Next time, I will simply strip off, and hold my ass open goat.se-style, asking if they want to check for any "bombs" that I might drop during the flight. (I've dropped trou before for the TSA, and they are going to see me naked, so why not opt to let them actually see me naked?) I als

      • by jaffray ( 6665 ) on Wednesday December 30, 2015 @11:59PM (#51213651)

        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.

        • 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.

          Do you mean John Brennan, the CIA Director? Kind of a powerful guy, who I would imagine travels with an entourage of security, and has some exception that even Congress-members do not get.

          If so, I'd really appreciate a source. Your story rings true, oh-so-true, but I haven't been able to find a source confirming it.

          I any case, I'll wear my "banana hammock" g-string swimsuit underneath, or a Speedo (which has a label) every time I fly. If it's not indecent on the beach or in a swim competition, then it'

          • by jaffray ( 6665 )

            John Brennan did pretty much that, stripping naked in protest of invasive TSA procedures.

            Do you mean John Brennan, the CIA Director?

            That would be hilarious :) But no, it's a different John Brennan.

          • Your banana-hammock might get you a pro boner attorney!

            *rimshot*
      • by lazarus ( 2879 )

        If everyone opted out (like you and I do) every single time, consequences to travel plans be damned, the scanners would be optional within a week and gone in a year. But they won't. Because people will always trade convenience and perceived safety for liberty. So it is important that people like the OP pick up the fight on a legal ground, doing the work that us sheeple should be doing for ourselves.

        Also, while you may be able to opt out in the USA and Canada, you cannot in other countries (like GB). Thi

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