Originally posted on Lowering the Bar, the blog of attorney Kevin Underhill.
Credit where credit is due: as I have said before, I think "Thousands Standing Around" is hilariously funny, but if nobody has suggested "Trouser Search Administration" yet I am hereby staking my claim to that one.
This excellent post by Colin Samuels has another good suggestion and also collects a number of other good posts on the general topic of the horrendousness of the TSA and its policies. If you are interested in the details of some of the legal arguments that can be and are being made, the Electronic Privacy Information Center has details here of its pending lawsuit against the Department of Homeland Security. Based on EPIC's opening brief, it argues:
- The TSA violated the Administrative Procedure Act by ignoring objections to and required procedures regarding the scanner/groping program, and by ignoring its statutory obligation to assure that its use of technology "[does] not erode privacy protections . . . ."
- The program violates the Fourth Amendment, despite the generally broad scope of allowable "administrative searches." See United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).
- The TSA also failed to comply with its obligations under the Privacy Act. (In other news - at least it's probably news to the Trouser Search Administration - we have a "Privacy Act.")
- Because letting strangers see you naked, let alone having them fondle you unbidden, violates the religious beliefs of Muslims among others (see, e.g., The Church of Don't Touch My Junk), the program violates the Religious Freedom Restoration Act.
- Finally, and I think this is my favorite, assuming the program is not "lawful" because it violates the Fourth Amendment it would also violate the Video Voyeurism Prevention Act of 2004, which prohibits peeking at parts that people reasonably expect to be private. The last sentence of the brief simply states, "Exhibit 1 makes clear that this standard is met," and I won't reproduce that picture here, because you know what? It sure does.
There have been some reports that the TSA, in its quest to be liked and respected even more, has actually "opened an investigation" against the guy who was not allowed to fly the other day because he would not agree to either be scanned or groped. If he doesn't have a legal defense fund or pro bono representation yet, he should.