by Mike Masnick
Thu, Jul 21st 2011 6:29am
by Mike Masnick
Wed, Jul 20th 2011 4:01pm
from the is-that-good-or-bad? dept
from the you-can-only-grope-in-one-direction dept
by Mike Masnick
Fri, Jul 15th 2011 5:28pm
from the can-they-x-ray-the-constitution? dept
The TSA seems to think it significant that there are no AIT scanners at some airports and the agency retains the discretion to stop using the scanners where they are in place. More clearly significant is that a passenger is bound to comply with whatever screening procedure the TSA is using on the date he is to fly at the airport from which his flight departs. 49 C.F.R. § 1540.105(a)(2) (no passenger may enter the “sterile area” of an airport “without complying with the systems, measures, or procedures being applied to control access to” that area). To be sure, he can opt for a patdown but, as the TSA conceded at oral argument, the agency has not argued that option makes its screening procedures nonbinding and we therefore do not consider the possibility. We are left, then, with the argument that a passenger is not bound to comply with the set of choices presented by the TSA when he arrives at the security checkpoint, which is absurd.Still... even then, it says that ordering the TSA to stop using the machines would "severely disrupt an essential security operation," so it will not halt the use of the machines, even if it expects the TSA to begin holding public review of them.
In sum, the TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings.
The second key argument (there are a few other lesser arguments) is the Fourth Amendment claim. And here, the court just doesn't see it.
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.... (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). 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.”This is, again, not surprising, but disappointing. It's rulings like this that allow for the gradual disposal of the 4th Amendment, by simply stretching the interpretation further and further each time, until there's just nothing left at all.
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 patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
from the on-purpose? dept
Please be assured that TSA’ s goal is to protect passenger’s rights, including the right to record at passenger screening checkpoints, while ensuring that passenger screening operations can take place in an effective and efficient manner.While the TSA may be telling the press that... it appears they forgot to tell the actual TSA agents on the ground who continue to threaten people for filming their activities.
The latest incident took place in Baltimore. The videotape was uploaded on July 10.These kinds of stories seem to keep popping up every week or so. Even more ridiculous, the guy in the video who claims he's the supervisor says that the checkpoint is "classified." Later, a second TSA official says she has to delete the video. None of that is true. In fact, it's outright ridiculous.
The action starts at 1:24 when a woman is videotaping the checkpoint process, waiting for her husband to walk through.
A TSA supervisor confronts her, telling her she is not allowed to videotape the checkpoint.
But she continues to videotape, asking him for a document that confirms it is not allowed.
He tells her he doesn’t have the time to show her, but will gladly call police and then have her removed from the airport.
At 3:16 in the video, a second TSA screener storms up and tells her to stop videotaping, but she continues to do so. When she continues to question their authority, the second TSA screener tells her she is allowed to videotape on the other side of the metal detectors but not once she is inside the checkpoint area.
That, of course, is not true.
Later, the TSA agents appear to be entirely vindictive, asking for ID so they can write up a report. When asked why, the agent says he finds the questions asked "particularly... disturbing" because "there were children in the background" and the guy had asked whether or not the naked scanners could see his penis.
Once again, it seems like the TSA is making a mockery of the Constitution.
by Mike Masnick
Thu, Jul 14th 2011 8:56am
from the terrorism? dept
"I still don't want someone to see our bodies naked," the mom is reported to have replied.So, either your privacy gets violated, you get molested, or you get arrested. Where do we live again?
As for the pat-down option, the police report states that the mom didn't want her daughter to be "touched inappropriately or have her "crotch grabbed."
TSA agents say she became belligerent and verbally abusive. The woman was arrested and charged with disorderly conduct.
by Mike Masnick
Fri, Jul 8th 2011 12:53pm
from the security-theater-is-reactionary dept
And, now, for all the talk of the ridiculous new naked scanners and gropings, people have realized that won't do any good if someone has a bomb implanted within them. So... guess what? The TSA is now claiming that they have reports that terrorists are planning to implant bombs inside people to blow up on flights... and that the existing scanners won't spot them. So they may start implementing brand new security procedures which they won't tell anyone about just yet.
Somehow, none of this makes me feel any safer... and my bigger concern here remains the TSA over terrorists. Nothing in what's being done suggests that the TSA is even close to focusing on who is getting on flights, and instead continues to focus on what is being brought on flights, which is a pretty pointless endeavor when you realize that there are always ways to get the next thing on board.
I certainly agree that it would be incredibly tragic if someone had an implanted bomb and it blew up a plane. And, contrary to the claims of some, I'm not advocating that we do away with security altogether. I'd just like to see security that actually focuses on trying to stop a real attacker, not on finding the lady with 4 ounces of liquid in her purse.
from the security-theater dept
by Mike Masnick
Thu, Jun 30th 2011 7:00pm
from the oh-well dept
by Mike Masnick
Thu, Jun 30th 2011 8:29am
from the of-course-they-do... dept
Now, EPIC, which is in an ongoing lawsuit to try to get these scanners banned, is claiming that via a FOIA request, they have new evidence that the TSA has been misleading people about the risks of the scanners. The documents show that Homeland Security boss Janet Napolitano blatantly misrepresented a NIST study in a USA Today OpEd, to claim that the scanners were safe. NIST, however, quickly contacted DHS, saying that it was "concerned" about the piece misrepresenting what it had said:
- NIST does not do product testing
- NIST did not test AIT machines for safety
- NIST measured the dose of a single machine and compared it against the standard
Separately, another document shows that TSA employees in Boston raised serious concerns to officials, claiming that there was evidence of a "cancer cluster" among TSA agents in Boston. The union asked the TSA to provide agents with dosimeters that could be clipped onto uniforms in order to measure the radiation to make sure the machines were safe. Agents in Atlanta apparently also expressed concerns and asked for dosimeters. The TSA refused, noting that it was already running some tests, and the tests showed no radiation problems.
This document is receiving a lot of attention, but I don't find it quite as damning as most. People just claiming that they believe there's a heightened cancer risk is not really evidence or fact. It would be more interesting if there was actual data to support that, rather than just anecdotal evidence. Still, I think it's becoming increasingly clear that the TSA, at the very least, exaggerated the claims of how much scientific support there is that these machines are safe. That's the part that bugs me. They could easily allow for much more testing of the machines, but don't seem that interested in it, preferring instead to mislead the public, a la Napolitano interview.