Federal court: TSA may read documents, threaten false arrest without recourse

(Source: Yoon S. Byun/The Boston Globe via Getty Images)
(Source: Yoon S. Byun/The Boston Globe via Getty Images)
(Source: Yoon S. Byun/The Boston Globe via Getty Images)

FLORIDA — A U.S. court has made a disturbing ruling in favor of abusive and invasive federal checkpoint procedures. The ruling established that TSA agents may read travelers’ private documents, threaten arrest for noncompliance, and lie about surveillance video without recourse.

While at the the Fort Lauderdale-Hollywood International Airport on August 27, 2011, a young man from Miami named Jonathan Corbett attempted to maintain a modicum of dignity while exercising his right to travel.  In his words, he told the TSA not to “touch his junk” during the warrantless search of his person.  Court documents laid out the facts of the incident:

The TSA screener explained how the pat-down worked. The screener would run the back of his hand along Corbett’s buttocks. The screener would place one hand on Corbett’s inner-thigh, the other hand on Corbett’s hip, and slide the hand on the inner-thigh up until meeting resistance.

Corbett refused to permit the TSA screener to conduct the standard pat-down and further stated the TSA screener could “not touch his genitals or buttocks” during the pat-down. The TSA screener told Corbett that his refusal to consent to the standard pat-down screening was “a problem” and summoned a supervisor.

To the supervisor, Corbett reiterated his demand that he not be touched on his buttocks or genitals, and the supervisor called the non-uniformed TSA manager, defendant Alejandro Chamizo, who came to the security checkpoint. Corbett alleged that defendant [Alejandro] Chamizo warned Corbett “that if he did not consent [to having his genitals and buttocks touched], he would be forcibly searched” and “would be arrested.”

After being threatened by TSA supervisor Alejandro Chamizo with forcible search and (false) arrest, TSA employees then dumped out Mr. Corbett’s bags, ignored his protests while looking through his personal documents, and photocopied sensitive material including his driver’s license.

Ultimately, after an hour of detainment, he was ejected me from the airport; all because of his objection to having his genitals touched.

Corbett, who is now 28, has been fighting in court against the TSA for the last three years.

One of the first legal hurdles was dealing with the government’s attempt to hide evidence.  Mr. Corbett had filed a FOIA request to obtain the CCTV footage of the incident, but says that the agency flatly lied in a phone call that the video did not exist because airport cameras did not work.   Corbett received similar treatment from the Broward Sheriff’s Office, which allegedly responded that no video existed and that, even if it did, “we have been informed by the TSA that this would have constituted Sensitive Security Information.”

Ultimately, all of Corbett’s tort claims — assault, false arrest, invasion of privacy, and emotional distress — were dismissed by a federal judge who argued that everything that happened was either legal or committed by individuals who enjoyed legal immunity from damages.  The U.S. Court of Appeals for the 11th Circuit took up the case, but affirmed the decision of the previous judge and sided with the TSA.

As the court reasoned, the “limited, consensual administrative searches performed by TSA screeners are not akin to ‘traditional law enforcement functions,'” evidently signifying that TSA agents cannot technically violate the 4th Amendment (as federal courts have chosen to interpret it).

Corbett described the ruling on his blog, TSA Out of Our Pants:

Last week, the 11th Circuit heard oral arguments in my case against the nude body scanners and pat-downs, but in the meantime, the judges in my other TSA case, challenging whether officers may:

  1. Read through your personal documents at checkpoints
  2. Threaten travelers with false arrest and forcible search
  3. Conduct retaliatory searches that last for up to an hour
  4. Refuse to identify its screeners at checkpoints
  5. Lie about the existence of checkpoint videos in response to a FOIA request

…ruled that the TSA may indeed do all of the above. In its 32 page opinion, the court ruled that it’s perfectly reasonable for the TSA to read through your documents (maybe even digital documents) because it might prove that you have a fake ID, or it might provide additional suspicion if you have literature that the state doesn’t like.

[Update:] I want to be clear that, perhaps most disturbingly of all of this, the court specifically ruled that the TSA may consider what you read as a basis for subjecting you to additional searches. Wrote the court on page 15, “a TSA screener could have reasonably factored the contents of a book possessed by a passenger into the totality of the circumstances relevant in determining whether the passenger presented a security threat.” And, the court left wide open the door for the TSA to now search electronic documents — your laptop, cell phone, iPad, etc.

The court ruled that TSA screeners are not “officers of the United States,” even though they call themselves “Transportation Security Officers,” and this distinction means that the government is not liable (and neither is the screener individually, of course) if they, say, punch you in the face, unlawfully invade your privacy, or cause emotional distress, so long as they are doing so in the course of their official duties. The court ruled that there’s nothing to be done about lying in FOIA responses, other than force them to not lie, which means the government now has every incentive to lie in the first instance. And the court ruled that the TSA can hide the names and faces (for example, from checkpoint security cameras) of its screeners. Quite simply, this opinion was a complete rout, save for a somewhat unusual note at the end that the defendants will have to pay their own costs in fighting the case (hey, at least I don’t have to pay the TSA to be told that they can do whatever they want).

SOURCE: Corbett v. TSA, No. 13-053

SUPPORTING DOCUMENTS: Fully Briefed: Can TSA Read Your Documents, Threaten False Arrest, Lie About Checkpoint Video?

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