Civil Liberties

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

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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.