Fourth Amendment Challenge to TSA Scanners Denied Without Comment by Supreme Court

The Supreme Court yesterday refused to hear a case challenging airport scanners on Fourth Amendment grounds. Details from Reuters:

Without comment, the court declined to take up Jonathan Corbett's complaint that the Transportation Security Administration's use of the screening techniques violated passengers' protection against illegal searches under the Fourth Amendment of the U.S. Constitution...

Corbett, who maintains the "TSA Out of Our Pants!" blog, complained that the TSA lacked unilateral authority to adopt the procedures.

The 11th U.S. Circuit Court of Appeals in Atlanta had rejected Corbett's case, saying a lower court correctly concluded that it did not have jurisdiction to review a TSA order.

On his blog, Corbett wrote that he plans to continue pursuing his case, using procedures allowed by the 11th Circuit....

Corbett's blog, in which he explains:

My case against the body scanners was tossed by a U.S. District Court, and then appealed in and affirmed by the 11th Circuit Court of Appeals, under a law that the TSA interprets to mean, “Anything we write down cannot be fought in a trial court” — you know, the kind of court with a jury, discovery, witnesses, etc. — and must instead be fought in the U.S. Court of Appeals.

That’s the bad news. The good news is that the fight is not over, it simply must be continued without that jury, and with discovery and witnesses allowed to me at the discretion of the 11th Circuit (instead of by right, as a reasonable reader of the Constitution might assume that we had). I will have my 11th Circuit filing completed within the next 30 days.

Corbett is angry at being searched by all levels of government, and has also sued the New York Police Department over what he considers an illegal stop and frisk of him.

Corbett is also pretty bold about legally challenging any level of government for messing with him in any way--enjoy this account of his fighting a Miami ticket, and eventually winning, over the legal definition of parking. Hint: it doesn't just mean the car is stopped in a space, as long as you are loading or unloading it. I like this guy.

Corbett's denied petition for certiorari.

A detailed account of the analysis of the D.C. Circuit Court of Appeals on an earlier suit in 2011 against the TSA on Fourth Amendment grounds filed by the Electronic Privacy Information Center. Some relevant bits of Fourth Amendment analysis from that case:

As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.....An administrative search does not require individualized suspicion. ...Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118-19 (2001)....

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute"...and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a pat down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

As Wired wrote last month, as a result of that case, the TSA was ordered:

“to act promptly” and hold public hearings and publicly adopt rules and regulations about the scanners’ use, which it has not done, in violation of federal law.

Then on Aug. 1 of this year, the court ordered (.pdf) the TSA to explain why it had not complied with its order. In response, the agency said it was expected to publish, by the end of February, a notice in the Federal Register opening up the Advanced Imaging Technology scanners to public comments and public hearings. That would be 19 months after the court order.

On Tuesday, the court gave the TSA until the end of March, meaning the agency has 20 months to “promptly” comply with the court’s order. 

Reason on the TSA and body scans.

I wrote in the now far distant past of 2003 about an earlier lawsuit, which also lost in federal court, challenging the mere demand for i.d. as an illegal search and illegitimate impediment to free movement, a suit filed by computer industry pioneer John Gilmore. That case too failed to make it to the Supreme Court.

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  • A Secret Band of Robbers||

    Poor Supremes. We putting them in situations where they have to make eye contact with what's left of the Fourth Amendment. Can't we just let it go and stop bringing it up?

  • BarryD||

    ...because the 4th Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated unless the search is called an administrative search."

  • A Secret Band of Robbers||

    The Fourth was probably doomed from the start when they threw in the qualifier "unreasonable" without defining it.

  • Hugh Akston||

    The people who wrote it probably thought 'reasonable' was a pretty common sense term.

  • Whiterun Guard||

    They shoulda oughta known better.

  • A Secret Band of Robbers||

    There wasn't any frame of reference for what constituted a reasonable search yet. Prior to the US, almost any search would have been legal, and reasonability might mean not ripping your ship to planks for weeks looking for smuggled cargo.

    I suspect that there were a number of people at the constitutional convention who didn't want a particularly strong Fourth amendment because they were scared smugglers were going to bypass the tariffs and bankrupt the nation again. Hence, "reasonable" and the oddly specific "persons, houses, papers, effects" language.

  • BarryD||

    Right. And the TSA is clearly not searching your person.

  • Hugh Akston||

    I think you need to consider what you're searching to be a person before it counts as searching their person.

  • A Secret Band of Robbers||

    No, silly, you only need to be secure in your person from UNREASONABLE searches. And what search that defeats terrorism could possibly be unreasonable?

  • Alex||

    There wasn't any frame of reference for what constituted a reasonable search yet.

    Nonsense, they provided it in the immediately following clause:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    No warrant, no search nor seize.

    On a related note, it puzzles me how so many people seem to think that probable cause is sufficient for a warrantless search. If that were true, then the police would never need to obtain a warrant.

  • Night Elf Mohawk||

    The First says "no law." The Second says "shall not be infringed." Words on parchment are no match for people who intend to impose their desires.

  • Pro Libertate||

    This is largely true, but the First and even the Second have fared better than the Fourth, which barely exists anymore.

  • mad libertarian guy||

    Except that the BoR is written on paper. Hemp, I think.

  • Hugh Akston||

    So if I'm reading this right, and I might not be, by upholding the 11 Circuit ruling the SCOTUS is basically saying not that the TSA is Constitutionally sound, but rather that we don't have the right to challenge the TSA's Constitutionality in court.

  • Auric Demonocles||

    I think you missed a "not" somewhere (Reason, give us edit!), but yeah, that's the way I read it too. Apparently the courts don't have jurisdiction over the TSA?

  • BarryD||

    Yeah, that's in the Constitution, also.

    Alphabet soup Federal agencies are not subject to oversight, and may do what they wish. That includes murder.

    See Horiuchi, Lon.

  • califernian||

    Fuck you, that's why

  • Brian Doherty||

    Not that it can't be challenged in court at all , but that it has to be in an Appeals Court first rather than a trial court.

  • Hugh Akston||

    Ah, I see. So basically he has to start his challenge at the Circuit level.

  • BarryD||

    Absolutely. There's a lot more money in it, for attorneys, when it has to be appealed a few times at higher courts. And the legal profession protects its own.

  • R C Dean||

    the court gave the TSA until the end of March, meaning the agency has 20 months to “promptly” comply with the court’s order.

    If the courts are just going to be limp-dicked bootlickers for the administration, what's the point of having them?

    In my (very) limited experience, judges are perfectly willing to go totally hard-ass on us "citizens" if we blow a deadline, but I guess things like complying federal court orders are just for the little people.

  • fish||

    If the courts are just going to be limp-dicked bootlickers for the administration, what's the point of having them?

    It gives the P h o n y s of this world something to point to when they want to make then checks and balances argument.

  • Ken Shultz||

    I'd say this is one of those issues where we really need to take our message straight to the people, but I'd guess this is one of the issues where the people are already on our side.

    The democracy we have just doesn't reflect what we the people want.

  • Romulus Augustus||

    On our side, really? I think if you took a poll of airline travelers, you'd find a good majority in favor of whatever measures, short of strip search, would keep a bomber off their plane.

  • Whiterun Guard||

    Yes, once again, the problem is a willfully ignorant electorate, not the people they elect.

  • Ken Shultz||

    I don't think it's a willfully ignorant electorate on this one.

    Maybe someday soon we'll be flying on commercial drones, and people will sign waivers in regards to bombers. The security level will reflect both what the customers will accept and what the market price of a ticket will allow...

    The fact is that markets are more democratic than representative democracy.

    It doesn't just work this way on airline security, it works this way on all sorts of things. Look at the Drug War. Look at all the medical marijuana dispensaries being raided and shut down in California. Medical marijuana has the support of electorate, there, but there's no way our elected representatives are about to let that get in the way of doing what they want...

    It's the same thing with airline security. Just because the people want something doesn't mean our representatives are going to give it to us. If the people don't want to go through bodyscanners at the airport, but our elected representatives do? believe me, it'll be a long time before the people get what they want...

    But it's being run by the government. What'd you expect? To be treated like a customer?!

  • Ken Shultz||

    I disagree.

    I think you'd find a lot of non-terrorists, who hate waiting in line and think it's absurd when they get hassled by the TSA.

  • nicole||

    Yes, I think polls of airline travelers would actually find the TSA much less popular than polls of US residents. It's the people who don't fly and never (or rarely) experience the reality of the TSA who are impressed by the security theater. Air travelers are either just annoyed at the inconvenience or smart enough to notice that the TSA's practices are absurd.

  • nicole||

    Sadly, at least one Gallup poll has me and Ken wrong. (Sidenote: fuck everyone in my age group who is less bothered than average by this shit because they don't remember any better.)

    That said, I'd like to see one that looks at airline travelers who fly more than once a year. I think that measure grabs too many average morons who take one family vacation a year FOR THE CHILDRENZ.

  • Ken Shultz||

    I suspect there would be more of a difference between asking people how they feel about the TSA generally and how they feel about bodyscanners specifically.

    There are probably a lot of people out there who think well of the TSA--but still don't want TSA agents staring at their private parts.

  • Ken Shultz||

    See my comment above...

    The people who don't fly aren't getting what they want either--on various other issues.

    It's just that markets are more democratic than democracy. ...or, stated more specifically, free markets are more democratic than representative democracy.

    Government just isn't the solution to this airport problem--not even democratic government.

  • Tonio||

    Well, Nicole, as dismal as the poll results are, please consider:

    1) The intimidation factor - ie, that if someone calls you up at random asking you if you disagree with the government that you're unlikely to give the "wrong" answer.

    2) Poll refuseniks. I make it a point to never answer any poll questions. I assume that there are others like me; maybe not a lot but perhaps enough to make a difference.

    3) I have cut way down on my air travel because of the security theatre BS. Again, I suspect that I'm not alone in this and that the people who would stop flying if they loosened security would be offset by the people who would resume flying if they did.

  • Auric Demonocles||

    Or if we used the free market, we could have different levels of security based on customer preferences!

  • Ken Shultz||

    I think it actually works that way at the top of the market now.

    I do not believe NetJets customers have to deal with the same security regular commercial jet passengers do.

    And I don't think it's the size of the planes, either, that makes the difference.

    The Gulfstream IV's NetJets is flying are twin engine jets...comparable to some of the stuff Boeing and Airbus are selling to regular commercial airlines.

    I suspect one of the big differences is that NetJets is providing most of their own security--and they don't want to piss off their customers.

  • Loki||

    It helps that if NetJets does piss off their customers and start to lose business, they're far less likely to get a government bailout than the major airlines are. So they still have an incentive to give a shit about what their customers want.

  • ||

    Yeah, I agree with RA. The "people" really did ask for this.

    I remember flying for the first time after 911. I was outraged...and I was the only one. Everyone else's attitude was, "Whatever we need to do to be safe."

  • Lord Humungus||

    A nation of laws *snorts*

  • ||

    So, I noticed this machine can't see non-metal objects inside body orifices. So when the terrorists get around to inserting bombs, what's the next "justified" countermeasure?

    Will we submit to allowing a machine do an anal cavity search every time we fly?

    ...but, it's okay, because we immediately delete the blurry images...

  • Nephilium||

    Southpark did it:

    "I'm gonna need to check your asshole sir."

  • Agile Cyborg||

    It is somewhat ironic that the fabric of freedom will be shredded into worthless rags over time under the ultimate purview of the very law-derived system that most people adore and refer to as the cornerstone of the modern free society.

    Law is a dual-edged sword and the constant chorus of law, law, law is a refrain sprung from the pieholes of mindless fools who've been duped into favoring authoritarianism over adult choice, common sense, diversity of will, and the application of basic ethics.

    The most ragged and socially-inoperable dictatorship has reams of law. Since when has law become the focal point of establishing modern open societies? Without law the modern society morphs into barbarianism? Perhaps, but WITH the proliferation of law society morphs into draconian totalitarianism which might actually exceed the evil practiced by the barbarian village.

    Something about humans and their incessant desire to dominate others has destroyed the intellectual baseline for basic and functional law. The evidence of this litters the human cultural landscape like pockmarks and bleeding sores.

  • The Late P Brooks||

    As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.....

    This might be believable if they were not also arresting and prosecuting people for drug possession revealed in airport searches.

  • Auric Demonocles||

    Speaking of things without comment....

  • Fist of Etiquette||

    Also, the Supremes themselves are protected by scanners.

  • Scruffy Nerfherder||

    From a politician's/bureaucrat's point of view the TSA is a safe bet.

    One - How often do airline security events occur?
    Two - Is it rare enough that individual events can be explained away?
    Three - Can we use any security events to justify more expense and growth of the security complex?
    Four - Will the security complex allow for lucrative "revolving door" arrangements?
    Five - Does the threat of airline security events scare the bejeezus out of the average voter?

    To me, the answers suggest that the TSA is not going away anytime soon. If anything, it will expand its scope until financial Armageddon forces it to scale back.

  • The Late P Brooks||

    The TSA is a gargantuan "workfare" program for people who would otherwise be wrangling shopping carts or picking up cans on the side of the road for the deposit money.

    The TSA ain't goin' noplace.

  • Tonio||

    ^This

  • mad libertarian guy||

    The TSA is a gargantuan "workfare" program for people who would otherwise be wrangling shopping carts or picking up cans on the side of the road for the deposit money.

    Like most of government, the TSA is a jobs program.

  • Rich||

    The need to search airline passengers “to ensure public safety can be particularly acute".

    "en·sure Verb: Make certain that (something) shall occur"

    Given that 10,000 other threats (e.g., corrupt baggage handlers) cancel out this "needed" search, I'll have to call bullshit.

    Anyway, what does "can be particularly acute" even mean?

  • Rich||

    Anyway, what does "can be particularly acute" even mean?

    Upon reflection, I suppose it means "Officer, that guy is acting suspicious."

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