11th Circuit Court On TSA Search Methods: Compared To A Terrorist Attack, Invasive Searches Aren't Invasive

from the 4th-Amendment-no-match-for-a-decade-of-fear-based-policies dept

Jonathan Corbett has been trying for years to get the courts to declare the TSA's pre-flight searches -- specifically body scanners and full-body patdowns -- a violation of the Fourth Amendment. So far, this has gone nowhere, with a lot of the blame falling on Corbett himself.

Spending a great deal of time filing in improper venues has cost Corbett his most recent lawsuit at the hands of the 11th Circuit Court. The two-year gap between his filing with the Miami district court and the federal court system had led to his case being thrown out mainly on procedural grounds [pdf link]. Despite being instructed where to file back in 2010, Corbett didn't actually file in federal court until 2012, far surpassing even the most generous readings of filing limitations.

Corbett failed to heed that advice, despite admonitions by the Administration, a magistrate judge, the district court, and our Court that we had exclusive jurisdiction over his petition. He instead pursued his Fourth Amendment challenge in the district court for nearly two years. Courts of appeals have excused a petitioner’s delay when the Administration caused a petitioner’s confusion, id. at 960, or when a petitioner unsuccessfully attempted to exhaust administrative remedies, Reder v. Adm’r of Fed. Aviation Admin., 116 F.3d 1261, 1263 (8th Cir. 1997), but Corbett has not alleged anything of the kind. His conduct—the “quixotic pursuit of the wrong remedies”—cannot excuse his delay.
A "quixotic pursuit" it was, including a direct petition (which was refused) to the Supreme Court. But it wasn't completely futile. During his lengthy stay with the district court, sealed, unredacted documents filed by the government were accidentally uploaded by a court clerk -- documents that revealed the TSA itself doesn't believe terrorists are focused on bringing down airplanes.

But it's the argument following "Alternatively, the Screening Procedure Is a Reasonable Administrative Search" that deals directly with Corbett's complaints. As is indicated in the subtitle, the TSA's pre-flight screening methods are both an "administrative search" (i.e., not requiring individualized suspicion) and "reasonable." But "reasonable" compared to what?
The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett. Airport screening is a permissible administrative search; security officers search all passengers, abuse is unlikely because of its public nature, and passengers elect to travel by air knowing that they must undergo a search. Hartwell, 436 F.3d at 180. The “jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane” outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down.
Corbett argues that the TSA could use less intrusive methods than patdowns and full-body scanners, but the court states that the Fourth Amendment does not demand a "least invasive" effort. It also doesn't demand the system be foolproof -- which the TSA's definitely isn't. It only requires a balance of the public's safety and its rights. An administrative search, especially with current full-body scanners that use a generic body shape when scanning flyers, does that.

While the court's decision is more or less reasonable, it does indicate that there will not be a successful civil liberties challenge to the TSA's tactics anytime soon. Much of the discussion only deals with balancing the Fourth Amendment against worst-case scenarios, rather than the mundanity that is the millions of un-hijacked, unmolested flights that occur every year… year after year.
“[T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.” Hartwell, 436 F.3d at 179; see United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. . . . [T]he potential damage and destruction from air terrorism is horrifically enormous.”); Singleton v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979) (“The government unquestionably has the most compelling reasons[—]the safety of hundreds of lives and millions of dollars worth of private property[—]for subjecting airline passengers to a search for weapons or explosives that could be used to hijack an airplane.”); see also United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002).
Finally, the federal government's unwavering belief that secret documents are still secret even when the public has already seen them is obliged. Despite being published in full by a clerical mistake, the court instructs Corbett to honor the purely symbolic sealing of previously exposed documents and denies him release from his non-disclosure agreement.
The Administration filed under seal the proprietary information—an operations manual for an advanced imaging technology scanner—because the owner of the information marked the manual with the warning that customers “shall not disclose or transfer any of these materials or information to any third party” and that “[n]o part of this book may be reproduced in any form without written permission” from the company.

We also grant the motion to seal the sensitive security information because Corbett has no statutory or regulatory right to access it. Sensitive security information is “information obtained or developed in the conduct of security activities[,]... the disclosure of which TSA has determined would... [b]e detrimental to the security of transportation.”
"Detrimental," except that some of this information was already exposed and yet, planes kept flying and no terrorist activity was detected.

So, rather than seeing a growing skepticism towards the government's claims that the TSA's screening procedures are the only thing standing between us and certain disaster, the court seems to be embracing them with just as much enthusiasm, 13 years after the 9/11 attacks. It cites various attacks that were thwarted (by passengers, no less) as all the evidence that's needed to support the government's claims, while apparently ignoring the TSA's own assertions that planes are no longer terrorism's favorite target. Corbett did a lot to sabotage his own chances of a win. The court's decision here just ensures it will be much more difficult for whoever follows in his wake.


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  • icon
    Ninja (profile), 26 Sep 2014 @ 7:23am

    I have an idea. Have these morons in the courts and Govt that think TSA procedures are no problem go through a detailed cavity exam including gastric washing or whatever you call it to check if they have drugs in their asses. After it we can ask them again if they find it reasonable.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 26 Sep 2014 @ 12:20pm

      Re:

      I have another idea.

      Multiply the invasiveness of the TSA search by the probability of getting one as you board the plane (close to 1)

      Multiply the invasiveness of being hit by a terrorist attack by the probability of that happening (

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:15am

    In the interest of courthouse security

    We need TSA to screen all access by courthouse personnel. Due to their privileged position and detailed knowledge of building layout, they are ideal candidates to subvert to smuggle contraband into the courthouse. Therefore, they must be screened more rigorously than members of the general public.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:31am

    Maybe Jonathan Corbett is actually working for the other side.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2014 @ 1:12pm

      Re:

      Because giving a shit about liberty makes you a terrorist?

      Keep in mind under today's rules the founder of the USA were all terrorists!

      Which means ex post facto the entire government of the United States is a Terrorist organization because it was installed by a bunch of Terrorists!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:36am

    and i've never encountered a more 'stuck up their own asses, ignorant, self-important' bunch than those that work for TSA!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:49am

    Prepare for Godwin:

    Compared to having the next Hitler, killing babies isn't that bad!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2014 @ 9:56am

      Re:

      Note: I have never engaged in, participated in or have been a witness to any baby killings, nor have I planned to or had a desire to kill babies.

      These things shouldn't need to be said but I feel like I have to with everything always being taken out of context.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Sep 2014 @ 4:15am

      Re:

      I vivisect kittens in front of orphans to prevent nuclear war.

      Note: I do not specifically recall ever having tormented cats in front of captive audiences of street urchins. Then again, it's not like I can remember every single minute of every single day of my entire life...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:49am

    the safety of hundreds of lives
    How about the safety of tens of thousands of lives? As I recall, about 30,000 Americans committed suicide in 2001, and about 50,000 committed suicide last year.
    Now, I admit, I don't have any definitive evidence or anything, but maybe the steadily increasing number of suicides and the budding Orwellian police state might have something to do with each other?

    If the government was really interested in saving lives, they'd shut down the TSA, stop buying tanks for small town police departments, and up the suicide prevention budget.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2014 @ 12:24pm

      Re: [suicide prevention]

      No. No. No. That's not how it works. Let me show you how easy this game is:

      From “The government unquestionably has the most compelling reasons[—]the safety of hundreds of lives and millions of dollars worth of private property[—]for subjecting airline passengers to a search for weapons or explosives that could be used to hijack an airplane.”

      To: “The government unquestionably has the most compelling reasons[—]the safety of *billions* of lives and *billions* of dollars worth of private *prisons* for subjecting *humans* to a search for *anything* that could be used to *die before we say so*.”

      Ka-ching. Profit !!

      reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 26 Sep 2014 @ 9:55am

    Quibbles

    abuse is unlikely because of its public nature


    This makes no sense to me. The privacy invasion is not public (unless they're thinking that only the physical act of the screening counts).

    The “jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane” outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down.


    I just wish that us citizens had some kind of say as to whether that tradeoff is reasonable or not, and had some sort of actual recourse or ability to challenge actions when the process is abused.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2014 @ 1:15pm

      Re: Quibbles

      We do.

      It's call protest, and if that does not work, revolution.

      But according to most of the cowards here and the public at large good luck getting that far.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 26 Sep 2014 @ 2:08pm

        Re: Re: Quibbles

        Yes, I meant within the system.

        "But according to most of the cowards here and the public at large good luck getting that far."

        I have absolutely no idea what you're talking about here.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 9:59am

    I think the government spends far more than just "millions of dollars" to keep the TSA running each year, which makes it surprising that they brought potential property damage costs into the argument.

    reply to this | link to this | view in chronology ]

  • icon
    LduN (profile), 26 Sep 2014 @ 11:13am

    compared to..

    Compared to someone setting off a breifcased sized nuke in New York city, random stop and checks by the PD isn't a big issue.

    Compared to a North Korean style dictorship blended with with some Stalin-esque purges, summarily executing the random politician isn't that big of an issue

    It's the government's new game, sounds fun... See how many you can come up with!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2014 @ 1:35pm

    It cites various attacks that were thwarted (by passengers, no less) as all the evidence that's needed to support the government's claims

    In what other sector is failing at your job an argument for your continued employment?

    reply to this | link to this | view in chronology ]

  • icon
    JMT (profile), 26 Sep 2014 @ 1:44pm

    Piratey pirates

    "The “jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane” outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down."

    Wait, did they just use actual meaning of the term 'pirating'? Or did they really mean illegally copying an airliner?

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 26 Sep 2014 @ 2:26pm

    Flying is not always optional

    passengers elect to travel by air knowing that they must undergo a search


    I never elect to travel by air. When I fly, it's always because I have no other option. I dearly wish that I could avoid setting foot in an airport ever. Up yours 11th circuit.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Sep 2014 @ 6:48pm

    Compared to X, Y isn't so bad

    'Compared to a potential terrorist attack, invasive searches aren't so bad.'

    'Compared to underage drinking, warrant-less searches aren't so bad.'

    'Compared to the damage an out of control mob could potentially do, cops armed with military gear aren't so bad.'

    'Compared to rampant crime by potentially untraceable criminals, mandatory tracking and monitoring systems aren't so bad.'

    'Compared to crimes committed in the privacy of the home, cameras installed within each house to catch and stop those crimes aren't so bad.'

    And finally, what they're really saying...

    'Compared to freedom and the risks that comes with it, a comfortable, constantly monitored, and secure cage isn't so bad.'

    Life has it's dangers, freedom has it's risks. The brave and strong accept this, and rise to the challenge, knowing that the reward, both for themselves and those around them, is worth it. The cowardly and weak on the other hand prefer to avoid the dangers and risks, and instead sacrifice their freedoms and their rights, and the freedoms and rights of others, on the alter of illusionary 'safety', never realizing or caring that a gilded cage is still a cage.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 27 Sep 2014 @ 1:12am

    Much of the discussion only deals with balancing the Fourth Amendment against worst-case scenarios, rather than the mundanity that is the millions of un-hijacked, unmolested flights that occur every year… year after year.

    You need to go back and look at see what happened in the late 60s and early 70s when there was no security, no real checking. Plane hijackings were almost a common occurrence, to the point where people were joking about the best way to get to Cuba was to hop a plane in the US, because it was likely to get hijacked.

    So all of those mundane, nothing happening on them flights... you can trace that back to the basic fact that the passengers are checked, and as a result the system is safer for everyone involved.

    I don't feel that walking through a metal detector or getting a pat down effectively changes my rights as a citizen. Knowing everyone else got the same thing does however increase my confidence that everyone else on the flight isn't going to pull out a weapon or try to hijack the plane. In case you haven't noticed, you have to go through just about as invasive a process to get into most night clubs these days in big cities.

    That is a much bigger commentary on "we the people" than anything. "ya do it to yourselves, you do..." thanks to Thom York (and yes, see, you can spread culture without piracy!)

    reply to this | link to this | view in chronology ]

    • identicon
      Sigh, 27 Sep 2014 @ 2:43am

      Re:

      Wonder what happenend on early of year 2000 that efficenly stopped aiplane hijacking on the planet. All airplain- related companies that *DID* install those barely noticeable new cabindoors had all things covered. And ask from internet for example which 2 american airline-companies did *NOT* install them as a safe and cheap fix for the broblem?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Sep 2014 @ 2:58am

      Re:

      Except even the TSA admits that terrorist groups aren't targeting planes:

      “As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fundraising, recruiting, and propagandizing.”

      And the reason most likely has very little to do with the TSA:

      Elsewhere, the TSA appears to admit that "due to hardened cockpit doors and the willingness of passengers to challenge hijackers," it's unlikely that there's much value in terrorists trying to hijack a plane these days

      Now, you could say that if a terrorist is planning on blowing up the plane, neither hardened door or passengers are likely to stop them in time, but if they're willing to blow themselves up, then why would they even bother with the plane at all? They could kill just as many people, if not more, by detonating their explosives in the middle of the TSA created security lines, where a bunch of people are crammed together to be run through security checks.

      That doesn't sound like an improvement in safety to me.

      Saying it's the TSA 'making planes safer' because they happen to be there is like saying that because some of them have mustaches, it's due to the mustaches that the terrorists haven't tried anything.

      I don't feel that walking through a metal detector or getting a pat down effectively changes my rights as a citizen.

      Then your willingness to be treated as a threat/criminal by default is higher than mine. If I wanted to be treated like an imminent threat or criminal, I'd get myself arrested and thrown into jail, having that as the default when flying is ridiculous.

      Source for quotes above:
      Accidentally Revealed Document Shows TSA Doesn't Think Terrorists Are Plotting To Attack Airplanes
      https://www.techdirt.com/articles/20131019/02322924936/accidentally-revealed-document-shows -tsa-doesnt-think-terrorists-are-plotting-to-attack-airplanes.shtml

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 27 Sep 2014 @ 3:30am

        Re: Re:

        You are correct in all counts, except that you sort of seem to miss the point.

        TSA was talking about a pure hijack. That is only one of the many things that could happen in the air that would not be desirable. A bomb would be a perfect example, if there are 200 people on the plane, a bomb will effectively kill all of them, there is little chance that a bomb set off in a TSA line would accomplish the same. The bomb doesn't kill them, it's the plane falling out of the sky. They are unlikely to have enough fire power to make the building fall out of the sky (think Oklahoma bombing to figure out how much was needed to accomplish that).

        Then your willingness to be treated as a threat/criminal by default is higher than mine. If I wanted to be treated like an imminent threat or criminal, I'd get myself arrested and thrown into jail, having that as the default when flying is ridiculous.

        That's your opinion, and why I wouldn't want to fly near you.

        Remember something important too: A whole bunch of the American public loves to carry weapons, particularly hand guns. Without a solid check, you can imagine how many of them would end up on places. You know those stories about knee blockers? Can you imagine how that would have been settled if one of them had been armed (and perhaps a little drunk too)? In such close confines, with so many lives at risk, what the TSA does is basically for your own good. It gives me a decent sense of security knowing that at least the obvious stuff isn't going to get us.

        The results? It's safer to fly than walk, ride in a taxi, or ride a bike. It's safer in a plane then it is at work or dozens of other places where random "good" Americans show up with their collection of weapons and get back at the supervisor who fired them for whatever reason.

        Saying it's the TSA 'making planes safer' because they happen to be there is like saying that because some of them have mustaches, it's due to the mustaches that the terrorists haven't tried anything.

        part of the reason why they aren't planning hijackings and bombings of planes at this point is because the amount of effort required to make it happen is too high. The chance of getting a big enough device on a plane to do the damage needed right now isn't good. Send the TSA home, stop checking people as they board, and it won't be long before the skies will be the least safe place to be.

        reply to this | link to this | view in chronology ]

        • identicon
          Just Another Anonymous Troll, 29 Sep 2014 @ 7:09am

          Re: Re: Re:

          "part of the reason why they aren't planning hijackings and bombings of planes at this point is because the amount of effort required to make it happen is too high. The chance of getting a big enough device on a plane to do the damage needed right now isn't good. Send the TSA home, stop checking people as they board, and it won't be long before the skies will be the least safe place to be."
          Except for the part where a terrorist might be able to stow away in a wheel well for the plane. Usually, that's a one-way trip, but if you're blowing yourself up that won't matter.
          The ingenuity of all extremists who live and have lived > the TSA's ability to stop them. The only 100% sure way to keep a plane from being blown up is to shut down air traffic.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Sep 2014 @ 4:34am

      Re:

      You need to go back and look at see what happened in the late 60s and early 70s when there was no security, no real checking.
      We all died? Crap, I shoulda stopped paying my taxes.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 28 Sep 2014 @ 4:09pm

      Re:

      "You need to go back and look at see what happened in the late 60s and early 70s when there was no security, no real checking."

      Why?

      Almost nobody is arguing that there should be no security checking at all. People are just arguing that the current level of "security" is far too intrusive.

      Even the quote you're replying to isn't making a case for zero security -- it's merely pointing out that the "balance" being struck now is very unbalanced.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Sep 2014 @ 9:31pm

      Re:

      >I don't feel that walking through a metal detector or getting a pat down effectively changes my rights as a citizen.

      I'll let the airport staff know that you'd like your groin and glutes clutched extra hard the next time you fly on a plane.

      reply to this | link to this | view in chronology ]


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