After all the controversy concerning the TSA's naked scanners, it appears that someone at the TSA just found out that they could be made to work without showing the naked image of a person's body and realized perhaps it's a good idea to switch to that version of the software. Of course, there are still serious concerns about the radiation issues, but at least something is happening.

Well, well. There was a lot of talk earlier this week about the woman, Yukari Miyamae, who was arrested for allegedly groping a TSA agent at a security checkpoint. The police reports claimed she had grabbed the agent's breast. In some press reports, Miyamae had claimed she did not actually grope anyone. And now... the district attorney's office in Phoenix has decided not to press charges, claiming that what she did "did not rise to the level of a felony offense under state law." She may still be charged with a misdemeanor, however, though that would be a city issue. At this point, it's not entirely clear what happened. Either the original claims by the police were simply not accurate and she didn't do what they claimed (as she asserts). Or the DA may have realized that going forward with such a prosecution would be problematic for a variety of reasons, not the least of which is the equivalence issue that plenty of people have raised, about whether or not the TSA gropings themselves are a form of sexual molestation.

Well, while it may be legal for the TSA to grope you, that doesn't mean it's okay for you to grope back. It appears that one woman is finding that out the hard way, after grabbing and squeezing the breast of a TSA agent. She admitted to "the crime," and now faces felony charges. It's not clear if she did this as any sort of protest against the pat downs, though it does strike me as an interesting way to make that point (if that is the case). After all, if it's okay for the TSA to do that to passengers, but it's a felony in the other direction, doesn't that at least raise some questions about the "reasonableness" of the pat downs?

This isn't a huge surprise, as we said when the lawsuit was first filed, but EPIC has failed in its attempt to have the TSA's naked scanners declared unconstitutional. The court seems to think the scans are just dandy, though it had some trouble with how they were implemented. There were two key legal points raised by EPIC. The first was that implementing the naked scanners without a public review violated the Administrative Procedures Act. The court seems sympathetic to this argument:

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.

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.

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.

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.”

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.

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.

The TSA recently reiterated that it is entirely legal to photograph or videotape airport checkpoints and security screenings:

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.

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.

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.

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.

A woman, who did not feel comfortable going through the TSA naked scanners, was arrested for disorderly conduct when she also refused to let the TSA molest and grope her daughter. I'm trying to figure out how this makes us any safer on airplanes.

"I still don't want someone to see our bodies naked," the mom is reported to have replied.

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.

So, either your privacy gets violated, you get molested, or you get arrested. Where do we live again?

One of the main problems of the TSA's brand of security theater is that it's totally reactionary. Nearly every bit of it is designed to stop the last threat, rather than face the larger issues of identifying threats in general. A group supposedly planned to use liquid explosives? You can't bring liquids through security any more! Some jackass tried to light a shoebomb on fire? Everyone remove your shoes! This has resulted in people guessing just how far this will go. Years back, this even led Bruce Schneier to run his movie threat contest, in which the goal was to come up with all sorts of movie-plot style threats, which would then render the TSA helpless.

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.

Apparently the TSA's Security Theater is a comedy. Pjerky was the first of a whole bunch of you to alert us last week about the TSA's massive failure to catch a Nigerian man who boarded a flight without a valid boarding pass. The man successfully flew from New York to Los Angeles. Apparently, the flight crew discovered they had a stowaway after people complained about the man's smell (even though he was seated in a seat). I'm not quite sure how complaining about someone's smell leads to them being found out as a stowaway, but what I do know is that the guy was not arrested when the flight landed. Instead, he was taken into custody a few days later when he tried to do it again by getting on a Delta flight from LA to Atlanta without a boarding pass. This time, the FBI took him in, but later released him. Meanwhile, the TSA was busy groping 95-year-old cancer patients.

Given a second chance to pass an anti-TSA groping bill in Texas, it appears that Texas state elected officials chickened out again. While the State Senate had watered down the bill so that it allowed the TSA to continue to do the "enhanced patdowns" if they had a "reasonable suspicion" (rather than the "probable cause" standard in the original bill), the House failed to vote on the newly revised bill by the end of the session yesterday, which apparently means that the bill can't be introduced again this year.

Last year, we noted that the TSA appeared to be misleading the public in stating that its new more intrusive scanners were safe. This didn't mean that the machines weren't safe -- but that the TSA was, at the very least, massively exaggerating the claims that they had scientific support to say that the machines definitely were safe. Earlier this year, there were further worries, when reports came out showing that some of the machines were giving off much more radiation than they were supposed to.

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

Apparently, NIST told DHS to stop misrepresenting its work, and suggested that if DHS agreed, then it wouldn't call for USA Today to run a correction on the piece.

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.