Lawsuit Decisions in EPIC's lawsuit against the TSA

Discussion in 'Aviation Passenger Security in the USA' started by lkkinetic, Jul 15, 2011.

  1. KrazyKat

    KrazyKat Original Member

  2. barbell

    barbell Coach Coach

    I don't think it's a troll.

    It's easy when one is passionate about something to bristle at an opposing opinion. However, this poster, I think, got it right (for expediency I'll use the masculine pronoun). He correctly asserts that in order for these searches to be overturned, it would overturn the entire system at other agencies, as well. The monster is too big, too complex for such a scheme to work. This is the problem with a slippery slope.

    It is no accident that Napolitano called these searches "law enforcement type pat downs". Despite comments to the contrary, she is an intelligent person, and is by training an attorney. By instituting, and publicly calling them "law enforcement pat downs" she links them into the entire system. The problem, of course, is that presumed innocent citizens going about their day should never be subject to "law enforcement pat downs." However, the administrative search doctrine allows just that. TSA as the "expert" in the airport security environment has determined that non-metallic explosives are today's greatest threat (I don't disagree). They have also determined that the best way to detect it is a full-on strip search, which is what they have argued in open court (I believe it very well may have been this case). They have presented this argument to say, in effect, "We have a right to strip search people. However, that is too invasive, so we have devised this better option, which is less invasive and doesn't involve touching. We have also taken GREAT PAINS to disguise the identity of the passenger." The judges, therefore, find it reasonable in light of current technology. How could they not under these circumstances?

    The problem, of course, is that there are far better ways to find this threat. That, and the threat really isn't a threat in the way that TSA has framed the argument. Until someone can successfully argue to the court that these procedures are both ineffective, AND violate the ability of people to freely travel. I believe Corbett is doing an excellent job of making just that argument. Whether or not he is successful is yet to be seen.

    In my ethics class, taught by an attorney, he told us when approached by a government agent for an audit, never, never, let them in without a warrant specifying exactly what they're looking for. He said that they are like vampires - once you've invited them in, you can't get them out and they'll suck everyone in the house dry. The administrative search doctrine let the vampire in, and now TSA is sucking us all dry.
  3. lkkinetic

    lkkinetic Original Member

    Here's a really informative post from Jim Harper at Cato, who's been keeping an eye on national security and 4th Amendment issues for a long time:

    Strip-search machines: A loss seeds the win

    He does a really good job of explaining the two parts of the decision, how they relate to each other, how the TSA will be held accountable for complying with the APA, and a cautiously optimistic path forward for pursuing the 4th Amendment issues. I think his analysis fits with barbell's observations above too.
  4. Mike

    Mike Founding Member Coach

    EPIC has filed a petition for rehearing ....

    JDSupra: Petitioners' Petition For Panel Rehearing Or Rehearing En Banc And To Vacate Agency Rule: EPIC Files for Rehearing in Airport Body Scanner Case

    A PDF of the petition is attached below:

    Attached Files:

    Elizabeth Conley likes this.
  5. Sunny Goth

    Sunny Goth Original Member Coach

    A few thoughts...

    I don't think the slashdot poster was a troll, but I don't think his/her analysis was on point either. I didn't see any discussion of administrative searches and that's really what we're talking about here. The test is outlined in EPIC's original brief. "Courts require that airport searches be "minimally intrusive," "well-tailored to protect personal privacy," and neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives." EPIC cites U.S. v. Hartwell, 436 F.3d 174, 180 (3d Cir. 2006). "Searches are reasonable if they "escalat[e] in invasiveness only after a lower level of screening disclose a reason to conduct a more probing search." You can read more here. Click on EPIC v. DHS to get the PDF.

    The DC court ruling that there has to be a rulemaking is huge.

    Also, the ruling on the 4th Amendment issue was disappointing, but not completely unexpected. The good news is that EPIC has filed for a rehearing on that issue.

    It's going to be a long haul.
  6. barbell

    barbell Coach Coach

    Sunny Goth thank you for that excellent analysis.

    I've been thinking about the rulemaking ruling a lot lately. It seems to me that the deployment of ATR was ramped up in response to this ruling in the hopes that comments wouldn't be so negative. I use as my basis here primarily that they've been on a huge media blitz about them, and have been very vague, more vague than they are normally, about how the software works and where it is deployed.

    What are your thoughts here?
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  7. Sunny Goth

    Sunny Goth Original Member Coach

    I agree with you, barbell. I hadn't really thought about it in terms of the ATR, but I think that's exactly what's going on. Damage control. I haven't been in an airport since last November so I can't compare and contrast the severity of the grope downs, but if what some people are saying is true, that the gropes haven't been so bad lately, that's probably why. I suspect the TSA is hoping that people think that the TSA is backing off, so there isn't a need to comment. It's hard to get people to comment, it takes time and the process isn't always easy, so people have to be very upset in order to send in comments. We know this, and so does the TSA. If the software is perceived to be 'fixed' and the patdowns aren't so bad, people think things are getting better and won't take the time to comment. If there aren't a lot of comments and/or the comments are mostly benign, the TSA can say that their procedures are just fine.

    And they have some time to clean up their image. A rulemaking isn't going to happen in the immediate future.
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  8. Elizabeth Conley

    Elizabeth Conley Original Member

    I agree, but I think the TSA has underestimated the difficulty of turning "the herd". As PO's as we may be about the sheep-like tendencies of the American public, sometimes it works in our favor. A significant percentage of Americans have made up their minds that the TSA is staffed with Constitution-shredding-criminals, their procedures are crimes and their machinery is dangerous. It's hard to find a TSA apologist on the comment boards these days. The herd is running in a certain direction. That direction doesn't favor the TSA. Turning the herd is going to be nearly impossible.

    Any public comment period the TSA holds in the next decade is going to run against the TSA.
    KrazyKat, barbell and nachtnebel like this.
  9. nachtnebel

    nachtnebel Original Member

    when will the comments be accepted? I'm going to round up everyone I know and flame those *ssholes. We cannot leave it up to the whims of these overreaching jerks as to whether they want to feel us up today and by how much, and run us through whatever machine they want. As if it were entirely up to them.
  10. Doober

    Doober Original Member

    IIRC, the comment period doesn't begin until the time for the TSA to appeal the ruling has expired. Was that 60 or 90 days from the date of the ruling? I don't recall.
  11. Sunny Goth

    Sunny Goth Original Member Coach

    EPIC just filed for a rehearing so that probably restarts the clock. Here's the link.
  12. barbell

    barbell Coach Coach

    I've finally had time to read EPIC's petition for rehearing. Hey, it was that or balance the checkbook, then clean the bathroom.

    It looks as if EPIC has wisely jumped the gun on TSA's apparent accelerated implementation of ATR software to dampen public outrage. They have crafted their argument not on the image evaluated, but on the image captured, an important distinction. Previously we were told faces were blurred, and people incorrectly assumed that groins were also blurred. Now with the new "desexualized" images, EPIC's argument considers that it is the image captured that makes the search unreasonable:

    Furthermore, it is encouraging to see EPIC rely on the Fourth Amendment exceptions detailed in Aukai (quoting Davis), "The scope of such searches is not limitless." They seem to base their argument on the fact that the current search using whole body imaging is both broad and intrusive, as well as ineffective:

    It seems to me that they are trying to force TSA to argue to the effectiveness of the search. This argument is going to be a difficult one to make, especially since GAO has already determined that these machines won't find the very thing TSA has claimed they are supposed to: panty bombs in the form of powder explosive. TSA may have also already backed themselves into a corner by stating that the greatest current threat is implanted body bombs. Previously the claim was that such a bomb wouldn't work because the body would limit the impact of the explosion. The new argument is that these machines won't detect such things. TSA has openly admitted that whole body imaging is not the most effective search method already, and it appears EPIC is now trying to force their hand.

    I sure hope these arguments are heard soon!
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  13. barbell

    barbell Coach Coach

    AND I'm making this separate post, because this point is important to consider:

    What is clear is what many of us have said all along: liquids are detected not by their radiographic density, but by the density and shape of their packaging. There is also the case that, I believe, Bruce Schneier has made that liquids and powders can be hidden using a "pancake" to obscure them against the body. As someone who works with radiographic imaging, therefore a subject matter expert particularly of humans, sharp edges are what appear in these images. Rounded and softened edges are barely visible, if at all. Sure, they'll "see" plastic guns, ceramic knives, and bottles of contact lens solution, maybe. Put powder under a pancake or liquid explosive in a baggie, they most likely will go undetected.
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  14. Lisa Simeone

    Lisa Simeone Original Member

    Unfortunately, what somebody just posted in the Amy Alkon thread about the preponderance of pro-TSA comments at Slashdot doesn't bode well. I'm afraid the sheeple are still intent on running off the cliff.
  15. Sunny Goth

    Sunny Goth Original Member Coach

    I don't know... I read slashdot on a regular basis and while I like the variety of topics, I'm always surprised by the amount of sexism on that site.
  16. CelticWhisper

    CelticWhisper Founding Member

    I've been an avid Slashdot reader for about 10 years now and the one thing that seems consistene is that /.ers are big on detail and minutiae. It makes sense in the context of the user base, which is disproportionately populated by EEs and programmers, but they do often come across as socially callous as a result. I can see how the comments in the Alkon article would seem sexist. I noticed the same. Some of them actually were, whilst others were more along the lines of "This is the legal definition of rape, this is the legal definition of defamation, do the accusations fit or not? Let's pick them apart like Legos and see." It comes from an absolute adherence to principles of rhetorical neutrality and objectivity, which can entail insensitivity in emotionally-charged topics like this. Not "Alkon is an overemotional and obnoxious publicity whore who's only posting for page hits" but rather "We would be remiss in our moral obligation to intellectual honesty if we ignored the elephant in the room, that elephant being that emotional and sensationalist language drives traffic to the site and thus to ad impressions."

    As for insinuations that Alkon was overreacting because she's female, yeah, that's sexist (expletive deleted). I know rational and emotional people of both sexes and it takes a particular kind of stoicism not to get upset at a disgusting, worthless organization like TSA ordering its hordes of brainless, slobbering, subhuman, child-molesting knuckle-draggers to piss on the Constitution day in and day out for their ill-gotten blood-money paychecks. For my part, to contribute my own emotional response (for the record, I posess Y chromosomes), it is my opinion that if the groper in question did, in fact, do what Alkon accuses it of doing, then I think it should be tried in a court of law which disregards its unethical immunity, found guilty, sentenced to an IV of about 3 liters of Clorox and dumped in the Mojave desert for the coyotes to pick apart at their leisure (should so noble a creature as a coyote deign to lower itself to coming near so base a TSO) and the sentence carried out swiftly and with great relish and enthusiasm. Hopefully this emotionally-driven response from a man will help to invalidate any generalizations made about the nature of Amy Alkon's statements.

    Slashdot is comprised of a wide range of personality types but it's definitely got a good number of folks who are both pro-individual-liberty AND highly intelligent & well-educated in sociopolitical theory. Those are the people who make the comments that make Slashdot a great site. The gender-supremacist fucktards were most likely just trolling.
    Sunny Goth likes this.
  17. Sunny Goth

    Sunny Goth Original Member Coach

    Well, now I feel all old and everything - I think I started reading it in '97 or '98. ;) And actually, I'll admit to the fact that I read it almost every morning when I'm waking up. It's not as fast a news source as Twitter, but I do enjoy the commentary.

    And yes, generally I agree with you about who posts on slashdot. I usually read it at 4 or 5 but sometimes the sexist stuff slips through.

    Yeah, agreed. And I don't have any problem with those posts.

    P.S. If you Clorox the TSA agent who did this, please don't leave them out for the coyotes to get, okay? I wouldn't want the coyotes to get poisoned. :cool:
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  18. lkkinetic

    lkkinetic Original Member

    +1; me too (including the old :D). I'm an economist by training and vocation, so I am in a field that has many of the same traits/social skills (or lack thereof) that Celtic Whisper described so clearly above. I don't mind the analytical minutiae approach, but rather the brusque dismissal of any other form of reaction to such issues.
    Sunny Goth likes this.
  19. Elizabeth Conley

    Elizabeth Conley Original Member

    Nothing new here, but I'm glad to see people are keeping the heat on:

    EPIC Continues TSA Pressure

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  20. Lisa Simeone

    Lisa Simeone Original Member

    "It remains unclear" is so namby-pamby. I wish they would come out with it -- according to several studies, re-enactments, and demonstrations, AIT wouldn't have detected it.

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