Update on EPIC TSA Lawsuit

EPIC has submitted numerous Freedom of Information Act requests regarding the body scanners.  They have posted the information online for all to see.

These documents include:

• TSA Procurement Specifications
• TSA Operational Requirements
• TSA contract with L3
• TSA contract with Rapiscan Part(1) and Part (2)

Initially it was claimed that the TSA body scanners could not store or transmit images.  Then the US Marshal Service in August 2010 reported they had saved more than 35000 images.  The TSA responded by claiming that it has not done so and the machines do not have the ability.  Some still believe the TSA, the smart one’s have distrusted them from the start.

One WBI system,  identified by  the Government, shall (26) have the capability, which can be configurable at the superuser level. to record  images for training purposes. The superuser password shall(27) be managed by  the TSA. The capability to retain  images at the superuser level will be disabled on operational systems

Later in the same document(emphasis mine):

Incorporate a three  level user and password scheme allowing supervision and “superusers” access and override capabilities

While they claim for it to be possibly disabled the fact that the feature is there means that someone can re-enabled it.  Some would claim that no one would possibly want it.  However there have been rumors about a “new fetish”.  The thing is though, it’s already happened.  That could be your one of your loved ones.  We know the types of people the TSA employs.

While reading through the Operational Requirements, you can find the following:

Normally one would avoid conjecture, however what could be considered critical to national security regarding the privacy capability of the device?  NMAB-482-1 can be found here, the section we really care about is here.

It appears that the tactic being used for airport security is to rule this search as being administrative.

Airport security searches fit quite naturally into the administrative search exception to the Fourth Amendment. Administrative searches are justified on the basis that they serve a societal purpose other than standard criminal law enforcement (Vernonia School District 47J, 1995, citing Griffin, 1987). After all, the Fourth Amendment cannot be construed to prevent the government from fulfilling a variety of other necessary functions, such as maintaining school discipline, preventing drunk driving, detecting illegal aliens, or even ensuring air traffic safety (Vernonia, 1995; Michigan Dept. State Police, 1990; United States v. Martinez-Fuerte, 1976).

Each of those examples though require some sort reasonable suspicion.  Randomly stopping cars for drunk drivers and testing everyone, until recently has never happened.  In the instance Florida’s new checkpoints, there will probably be a strong legal challenge.  When attempting to maintain school discipline they must be disruptive to begin with.  As for illegal aliens, detecting them is extremely difficult. If it is as they claim above, why isn’t Arizona’s law legal unquestionably?  Especially since it requires contact of a lawful nature, they can’t just walk around carding people.

With regard to the TSA though, they claim the right to do this to any person for any reason.  No reasonable suspicion is required of a crime having been committed.

Against the special need of the government, the court must consider the passenger’s expectation of privacy. This consideration involves the same analysis used in the threshold issue of whether a search has occurred, with one important difference. Deciding whether a person has a reasonable expectation of privacy for purposes of determining whether or not a search has taken place is a yes-or-no-question. Either one does or does not have a legitimate expectation of privacy in this context. On the other hand, expectation of privacy as a factor in the balancing test becomes a matter of degree. Thus, the court in Vernonia (1995) held that schoolchildren, because of the supervisory role schools have over them, have a decreased expectation of privacy at school. As discussed in the first section, airline passengers most probably have a legitimate expectation of privacy against being searched in an intrusive manner. Nevertheless, this expectation could decrease if passengers perceive the threat level to be high.

Emphasis mine.  Their method to get around this problem is to convince the public that a statistically rare event (you’re actually more likely to be struck by lightning) is actually more common than it is.  The comparison to school children also shows the view they have of the public in general of being children and the government has the supervisory role.  We’re the children in school and they’re the principal.

Further the NMAB states:

Thus, measures should be taken to minimize the appearance of nakedness, the number of people having access to and identifying the image with the traveler, the time the image endures or is preserved, the uses to be made of the data, etc., to the extent consistent with safety objectives. The next section deals with the concept of less versus more intrusive means.

The assumption though that is enough for some people regarding their privacy is false.  If it wasn’t why would these have popped up overnight?  Also the ability to store the images as I talked about earlier has been proven to be false.  While they may claim it is not “normally” enabled.  The machines do have the capability and there is no way for the public to verify that it does not store the image.  We must take the governments word, which at this point should be worthless to everyone. If you opt out of the scanner the TSA humiliates anyone who refuses to go through the body scanner.  They are doing a procedure that is highly intimate and detrimental to victims of sexual abuse.  This scanner can also reveal however private medical information that may not want to be shared because it’s no one’s business but yours and your doctors.  This also ignores the health concerns regarding the radiation exposure.  What is disturbing is this is the only time I’ve ever heard of people working around equipment that uses radiation that do NOT wear dosimeters. 

These documents display a crafted, thought out, and planned destruction of our 4th Amendment rights.  Their justification to violate the 4th Amendment centers around creating the illusion of necessity.  A Security Theaters has yet to stop any terrorists.  Yet they claim that their infringements are necessary and merely administrative to stop this “common” threat.  They need to be rendered impotent to stop the spread of their idiocy and evil.

(Sorry about going all Kevin Baker(it’s a complement Kevin) on this post.)

TMM

TMM is the owner, editor, and principal author at The Minuteman, a competitive shooter, and staff member for Boomershoot. Even in his free time he’s merging his love and knowledge of computers and technology with his love of firearms.

Many know his private name and information however due to the current political climate, many are distancing themselves due to the abandonment of Due Process.