Lawsuit Decisions in EPIC's lawsuit against the TSA

Good news in the EPIC lawsuit: federal appeals court says that the TSA improperly added scanners to the security process

That's what the TSA gets for not following the Administrative Procedure Act! Good, well deserved.

 

Whoa! For serious?

I am cautiously optimistic about this news.

Just for posterity, here are additional links with information:

TSA Violated Federal Law

Despite the precautions taken by the TSA, it is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not. (.pdf)

 

Read the whole decision -- we didn't win much. The battle must be fought in the political and economic arenas.

It's always possible that an appellate court in another circuit could reach a conflicting opinion, thereby pushing the Supreme Court to consider the issues, or the Supreme Court could choose to hear an appeal of a specific case, but the likelihood of judicial relief has nosedived with this decision.

 

A quick check of the news before I go back to sleep confirms my reading of the decision ...

http://blogs.wsj.com/law/2011/07/15/court-rules-on-airport-body-scans/

All we really got was a chance that maybe, just maybe, TSA will decline to promulgate its rule after the public comment period. Fat chance.

 

Reason: D.C. Appeals Court Rules In Favor of Nude Body Scanners; Against Privacy Advocates and Other Decent Peoples

 

Yes, Mike's right, and I was just coming back here to elaborate on the area we didn't win, which is the 4th Amendment claim:

Legal scholar Orin Kerr on DC Circuit's finding that scanners are a reasonable administrative search

It looks like the court did not think the question worth a lot of deep analysis, which is surprising b/c this court is one of the most 4th Amendment friendly ... but all of my law professor friends admit that constitutional jurisprudence these days is a bit of a mess. They basically just bought the argument that the form that the airport search currently takes is a necessary bulwark against terrorism, ignoring the other (IMO more reasonable) ways of achieving the same objective.

 

But here's the silver lining: to comply with this ruling TSA must submit its policy and procedural changes to a public comment period. If during that time they receive critical comments that contain well-reasoned arguments and data supporting those arguments, and yet TSA ignores those comments and proceeds, then it is in violation of the APA and is therefore liable to much more stringent legal penalties, which may be sufficient to stop those policies and procedures.

Either way, it's a camel's nose under the opaque tent of fear-mongering and cowardice.

 

I've not read the decision but I'm going to ask this: Is this the time to bring forth the evidence that the TSA has "mischaracterized" the safety of backscatter? If so, do you suppose any of those organizations that "tested" the machines and found them wanting will speak out or will the TSA try to squelch them?

 

I'm sure that EPIC is considering doing just that in a follow-up lawsuit. The other constraint under which the DC Circuit is operating is that, as an appeals court, it does not hear new evidence, but just reviews the evidence used in the lower court to either affirm or strike down the lower court's ruling. With this ruling they affirm part and strike down part (the public comment part).

So now EPIC will have to go back to the well, ideally in another region of the country (say, Texas ...), and have it wind its way up the judicial food chain. If different regional circuit courts rule differently on the 4th Amendment question, then the Supreme Court might choose to hear it.

 

There were reports that LAX was refusing opt outs so I wonder what the implication of that is relative to this decision. The ruling cited the groping as an alternative available to passengers in lieu of the strip search which they used as an out in terms of the 4th Amendment argument. However. if the pax is refused an opt out then, by this ruling, their 4th Amendment protections would be violated.

I'm wondering if the court painted TSA into a corner by enumerating the groping as the overriding condition to avoid the Constitutional argument. By refusing an opt out they are in violation of this ruling and thus wide open to an indefensible lawsuit.

Of course this pops up just when I thought I had the list up to date........ geez.

 

The ignorance of highly educated people always amazes me.

"We the court find that this agency acted unlawfully."

"We also don't care."

"Court Adjourned."

 

That's huge. The unseen SOPs?

So, they can't just say, "Opinion noted."
I would like to see about a brief which lays out the harm that assault/molestation survivors face through TSA's compulsory groping, as a class, and eliminate that as an acceptable 'out.'

 

This could not have come at a better time with so many people now having turned on WBI and the new gropes.

I'm with you, KrazyKat, I want to see the issue of the impact of both the virtual strip search and the grope brought forth in the public comment period.

I want to see the issue of groping the disabled discussed.

I want to see the safety issue discussed.

I would also have liked the court to have appointed an outsider to oversee the public comments as I don't trust Nappy or Pissy at all in this endeavor.

 

I admit that I'm getting scared. I've seen Liberty lose in court a lot recently. I don't want to take this conversation too far off track, but I have to say that I find the court's ruling terrifying.

We really do have judges in this country rewriting the U.S. Constitution. I don't like their version. Their version scares me a great deal. I don't want to live in the country they're creating.

 

Where as Krazy Kat is pathologically optimistic. Load these dockets with facts, I say! I'm not scared of going to the Ninth Circuit myself.

 

While I agree, I'm cautiously optimistic.

For one thing, it seems the 4th Amendment issue here was a minor point (in the case, that is).

For another, reading the opinion, it's clear that the judges don't really understand this technology. They are taking TSA at its word that these machines and gropings are "the only way" to detect these imagined "threats". Anyone who works with this type of technology (like me, for instance ) can tell you beyond a shadow of a doubt that this technology, and the way TSA is using it, is perhaps among the worst of options to detect what they think they need to. One of the biggest problems with TSA and its policies is that a bunch of clearly ill-informed, marginally intelligent people sit around and convince themselves of their rightness. That's dangerous.

As I understand it, when they test and train on these images, they aren't looking at an image of a person with an anomaly on them, they are looking at an image of a person on which an anomaly has been superimposed. When this type of training is unleashed on the real world it will fail, almost every time. The 100% failure rate at DFW is proof of this theory. There is a reason that when doctors are learning to read diagnostic imaging that actual cases are used, and several different presentations of the same pathology.

Simply put, TSA does not understand what it is doing with these machines, and does not understand how they work. That much is clear. They've convinced themselves that they are right, and they have simply parroted this misinformation to the Court to our detriment as a people.

 

Sorry if any monkeys are offended by what I'm about to say but turning TSA loose with these machines and expecting an improvement in actual security is equivalent to turning monkeys loose on tools and building supplies and expecting a mansion in 4 months.

 

Thanks. I really don't want to be scared. Your post is encouraging.

Would an appeal on EPIC's part lead to a more intelligent analysis of the TSA's junk science reaching a sane judiciary?

As an aside:

EPIC rocks. Kudos to them.

They really are doing a great job.

 

I'll admit that I was a little disappointed when I heard/read EPICs initial work in this area.

Now that we have a decision from it, I am most impressed.

I don't want to artificially get your hopes up: I think we're in for a long fight on this. It is my opinion that the judges don't understand the technology. I also think that TSA doesn't, either. That means they're just going to keep feeding each other the same faulty reasoning until someone is able to unmask it, and I doubt the attorneys involved have the knowledge to do so. Frankly, it's going to take someone successfully getting something through one of these machines, which is entirely plausible, for the argument to be made successfully.

The problem with this scenario is two-fold:

1. TSA has shown an escalating penchant for punishing us, the innocent, for their own failures, so expect screening to get worse after that.
2. The likelihood that such an event is going to happen any time soon is extremely low. We haven't seen another 9/11-style attack in 10 years not because of TSA, but because the "bad guys" have moved on to other things.

I'm reminded of Dr. King's excellent assessment, "The arc of the moral universe is long, but it bends toward justice." He was fond of quoting this line from Theodore Parker, an early American civil rights pioneer in his own right. I find the quote applicable to our own cause, as well.

 

Covered on Slashdot: http://news.slashdot.org/story/11/0...s-TSA-Body-Scans-But-Calls-For-Public-Comment

This comment is interesting but I can't tell if it's a troll or not: http://news.slashdot.org/comments.pl?sid=2329488&cid=36794642