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EPIC Files For Rehearing In Body Scanner Case 95

Posted by Unknown Lamer
from the movement-is-a-privilege-peon dept.
OverTheGeicoE writes "The Electronic Privacy Information Center has filed for a rehearing in their case against DHS regarding airport body scanners. In their latest court filing (PDF), EPIC argues that last month's ruling requiring a public comment period but no other changes was based on incorrect information. From TFA: '"The court overstated the effectiveness of the body scanner devices and understated the degree of the privacy intrusion to the travelling public," stated EPIC President Marc Rotenberg. EPIC's petition challenged the Court's finding that the devices detect "liquid and powders," which was never established and was not claimed by the government. EPIC also argued that the court wrongly concluded that the TSA is not subject to a federal privacy law that prohibits video voyeurism. The panel found that TSA body scanner employees are "engaged in law enforcement activity," contrary to the TSA's own regulations.' Note that this is a request for a rehearing with the same court that rejected their request to stop TSA's use of body scanners. It is not an appeal to a higher court. Is EPIC likely to obtain a more favorable ruling from the same court?"
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EPIC Files For Rehearing In Body Scanner Case

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  • by Bob the Super Hamste (1152367) on Tuesday August 30, 2011 @02:17PM (#37256922) Homepage
    Why would government (albeit a different arm) ever want to give up power they have. Personally I think it would be better fought on appeal especially if facts are in question. But then IANAL and don't even pretend to be one on /.

    EPIC's petition challenged the Court's finding that the devices detect "liquid and powders," which was never established and was not claimed by the government.

    • Re:Probably not (Score:5, Informative)

      by rahvin112 (446269) on Tuesday August 30, 2011 @02:32PM (#37257082)

      In Court you have to dot your t's and cross your i's or the higher court will refuse the hear the appeal. You have to show essentially negligence by the lower court for an appeal to succeed and that's what EPIC is doing. Presenting the errors in judgement and asking the lower court to overrule their own previous ruling. If the court refuses to go ahead with that (and it does happen that courts overturn their own judgments, reference the RIAA case against Jamie Thomas where the court overturned their own previous bad ruling) then they appeal that decision and the basis for courts ruling is then open to appeal due to the errors outlined in the previous ruling. People forget there are strict rules in the appeals courts about what is open for appeal. You can't appeal everything and the kitchen sink and it becomes a shell game to find the right avenue of appeal to get a judgement overturned.

      • by Ihmhi (1206036)

        There's loads of money in stuff like Quicken and other tax software, along with a practical guarantee that it won't fuck up your taxes so long as the information is accurate.

        It makes me wonder why there isn't a law version of this.

        Your closing statement contains an ad hominem attack on the prosecution and several other logical fallacies [expand list]. Are you sure you want to continue?

        • by Petaris (771874)

          There actually was for a while. Not sure if it still exists but there was Quicken Family Lawyer available somewhere in the mid to late 90's and maybe the early 2000's.

  • by Anonymous Coward

    Seriously, I have a rock that keeps terrorists away, how do I know it works? Well duh, no terrorist attacks near the rock. Specious reasoning perhaps, but no different than irradiating travellers at every airport in your country.

    FOR YOUR SAFETY we will expose you to IONISING RADIATION

    Bravo USA, bra-fucking-vo

    • To be fair though, there is a theory behind the scanners that they can detect concealed weapons and act as a deterrent to those who board a plane with a weapon. What's the theory behind your rock?

      • by Anonymous Coward

        The underlying theory of the Terrorist Prevention Rock is that when the rock is thrown at potential target a terrorist will freak out and run away whereas a traveller will just get angry.

        Good ol' rock, nothin' beats that!

      • Well you could detect most weapons with something like a metal detector but my confidence in the TSA's ability to do anything is limited. I have sent a coat through the x-ray machine and they have missed rifle rounds and shotgun shell numerous times. Granted I had forgotten that they were in there, but I thought these people were suppose to be trained professionals. And it wasn't I forgot one in there but lots of ammo, one time I threw away almost an entire box (18 or 19 rounds) of 7.62x54r [wikipedia.org] since I forgot t
        • by kmoser (1469707)
          I think I saw that movie. The Matrix, right?
        • by Anonymous Coward

          Well you could detect most weapons with something like a metal detector but my confidence in the TSA's ability to do anything is limited. I have sent a coat through the x-ray machine and they have missed rifle rounds and shotgun shell numerous times. Granted I had forgotten that they were in there, but I thought these people were suppose to be trained professionals. And it wasn't I forgot one in there but lots of ammo, one time I threw away almost an entire box (18 or 19 rounds) of 7.62x54r [wikipedia.org] since I forgot the box in the inner coat pocket, on another occasion I threw away 10 or so shotgun shells that made it through security.

          Heh. I can vouch for this kind of ineptness. Buddy of mine left his fully-loaded M&P 45 in the side-pocket of his carry-on bag that he normally used as his range-bag.

          Twice.

          Both times he didn't discover it until he arrived back home. So, that's a total of four boardings. I took him to, and picked him up from, the airport and drove him home both times. The first time I didn't actually witness his finding the gun in his bag and suspected he was trying to sell me a load.

          Funny, during the drive the second ti

      • You raise a valid point. However, I would argue that, before the government has the right to ignore the prohibition upon unreasonable search in the 4th Amendment and before the government has the right to subject you to potentially dangerous radiation, the burden of proof is upon them to show that what they are doing actually provides a deterrent effect.

        Furthermore, since there have been at least two would-be terrorists since TSA took over airport security (the "underwear bomber" and the
        • by Obfuscant (592200)

          However, I would argue that, before the government has the right to ignore the prohibition upon unreasonable search in the 4th Amendment

          Your argument fails upon its face. The government is not ignoring any prohibition. They would be claiming that the search via body scanner is not an unreasonable one, and thus the prohibition does not apply. That is significantly different than ignoring the prohibition. You need to argue that the search is unreasonable, not that they are ignoring you when you claim it is unreasonable.

          It's like when you come to an intersection with a yield sign. If you drive through without stopping, would you say that you

          • You need to argue that the search is unreasonable, not that they are ignoring you when you claim it is unreasonable.

            Point taken. However, the 9th Circuit Court of Appeals ruled in Ek vs. US that an X-Ray scan requires the same burden of proof as a strip search. The AIT scanners (some of them, anyway) use backscatter X-Rays to perform the search. IANAL and all that, but it would seem logical to me that the argument was settled long before TSA started bringing AIT scanners to the airports. Ergo, they are ignoring the prohibition.

            The underwear bomber [wikipedia.org] boarded his US-bound flight in Amsterdam. The shoe bomber [wikipedia.org] boarded his flight in Paris, France, after being detained by French National Police. TSA was involved with neither one.

            Tenous, at best. While TSA personally might not have been involved, the requirement for s

            • by Obfuscant (592200)

              Point taken. However, the 9th Circuit Court of Appeals ruled in Ek vs. US that an X-Ray scan requires the same burden of proof as a strip search.

              Ok. That sets the burden of proof. It doesn't yet prove that the scanning is an unreasonable search. You've just moved the argument from "is this unreasonable" to "has it met THIS level of reaonableness?" You still cannot claim that the prohibition is being ignored because you haven't yet shown that THIS kind of search fails to meet the same standard as another type of search.

              In other words, the standards for boarding the flight from Amsterdam or the flight from Paris were exactly the same as the standards for boarding a flight in the U.S. And those standards were insufficient to either provide a deterrent or to prevent would-be terrorists from boarding the two airplanes.

              Ummm, citation required?

              The failure of the people performing the searches to meet the standards does not prove that the standards

              • Point taken. However, the 9th Circuit Court of Appeals ruled in Ek vs. US that an X-Ray scan requires the same burden of proof as a strip search.

                Ok. That sets the burden of proof. It doesn't yet prove that the scanning is an unreasonable search. You've just moved the argument from "is this unreasonable" to "has it met THIS level of reaonableness?" You still cannot claim that the prohibition is being ignored because you haven't yet shown that THIS kind of search fails to meet the same standard as another type of search.

                How do you figure? In Ek vs. US, a drug smuggler is caught by the cops, based upon a tip from an informant. The cops used a device that uses X-Rays to image parts of his body that are not visible to the unaided eye to determine that he was, in fact, smuggling drugs. TSA, on the other hand, having no grounds for suspicion more damning than that they have bought an airline ticket, is also employing a device that emits X-Rays to image EVERY FREAKING PERSON WALKING THROUGH THE SECURITY LINE (assuming that th

                • by Obfuscant (592200)

                  How do you figure?

                  Because so far all you've said is that the government is ignoring a prohibition against unreasonable searches, and that SCOTUS has decided in a different situation that an X-ray scan needed to meet a certain burden before it was reasonable. You've now started to argue about whether it is reasonable, which is the point I was making. You can't just say "you're ignoring a rule" when the rule has clear exceptions. You need to show that the exceptions don't apply -- an now you are.

                  And that's the only point I w

                  • by anyGould (1295481)

                    I get (and agree) with your line of reasoning, with one exception: shouldn't the onus be on the government to prove that the search is reasonable, rather than the citizenry that it's not?

      • by treeves (963993)

        Theory should not trump empirical evidence. Evidence for rock is solid.

      • by Joce640k (829181)

        To be fair though, there is a theory behind the scanners that they can detect concealed weapons...

        Do they look up people's asses? Because if not...I know a way to get C4, detonators, etc., onto an aircraft (and so do the terrorists).

        How do you think cellphones (complete with chargers!), heroin, etc., get into prisons?

    • by wiedzmin (1269816) on Tuesday August 30, 2011 @02:48PM (#37257286)

      Seriously, I have a rock that keeps terrorists away, how do I know it works? Well duh, no terrorist attacks near the rock.

      Yes, but does your rock pull billions of dollars of federal funding for some ambiguous rock provider, who can take me out to a nice game of golf or gift me some of their stock options? No? Then we don't want it.

      • by Spad (470073)

        Whack an "Anti-Terrorism Rock" sticker on it, put some at every airport in prominent places and I'll bet you you could turn it into a multi-billion dollar boondoggle easily.

      • Give me $5 Billion in funding, and I can make a rock that does it better.

  • I wish the TSA was more transparent and honest about the technologies and processes they use. I get the impression their imaging technology [tsa.gov] and their processes such as their rules for liquids [tsa.gov] were better thought out and better supported by real world facts. After the attempt to smuggle explosive liquids onto flights in the UK, many airports limited liquid size to 100 ml, or 3.4 ounces. This somewhat arbitrary amount is just under the size of many 4 ounce mini-drinks and mini-yogurts and baby foods in the
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Behavioral profiling is effective. Ethnic profiling is not.

    • by slippyblade (962288) on Tuesday August 30, 2011 @02:31PM (#37257080) Homepage
      Except for the fact that it's been shown by explosives experts and chemists alike that the "liquid explosive" theory is not viable. It is difficult to do under lab conditions and nearly impossible to do in the bathroom of an airplane. So, once again, it's knee jerk BS response.
      • by yog (19073) *
        I want to believe what you're saying is true, but do you have some citations? Can't someone bring a quart of some binary explosive on board and use it to rip a hole in the fuselage?
        • by tgd (2822)

          Better off bringing a quart of bleach and a quart of ammonia.

          TSA regulations are about security theater, not reality.

          • by treeves (963993)

            Ewww. Chloramines. Give people a nasty headache. Terrorist!
            Or were you looking to clean and sanitize the plane by using them separately? In that case, hats off to you!

            • by gknoy (899301)

              I thought it was that it was effectively a way to flood the plane with poisonous gas. Chlorine gas does a lot more than produce headaches.

              • by treeves (963993)

                Combining bleach and ammonia does not make chlorine, but combining bleach and a strong acid would.
                It would take a lot of bleach (5% sodium hypochlorite) to make enough chlorine gas to really flood the plane with it.
                  People will smell it, and nearby, have symptoms, but they won't be incapacitated by the amount you could make with what you might get on board, certainly not most or all of the passengers.
                Combining bleach and ammonia makes chloramines, thus my comment.

        • by sjames (1099)

          No, they can't. First, unless they keep the reaction cool with a few dozen pounds of ice, it will splatter them with a highly caustic liquid. Naturally, they also get splattered if there's any turbulence.

          The caustic liquid is usually used to clean organic residue from glassware. It's known is piranha solution.

          • Wouldn't deter a suicide bomber, getting splattered by some caustic stuff is probably the highlight of their day.

            • by sjames (1099)

              You mean other than that their mission would fail completely if caustic burns stop them early. And of course, there's trying to convince the flight attendants who usually hand out small scoops of ice that there's a totally legit reason you need 60 pounds of it in the lav.

          • by treeves (963993)

            A piranha bath, in the semiconductor industry, is a mixture of hydrogen peroxide and sulfuric acid, not caustic (alkaline) but definitely corrosive, and used to clean organic residues from silicon wafers. I've seen chromic/sulfuric baths used to glass labware, but I've not heard that referred to as a piranha bath, and it is also acidic.
              Did you mean something else?

        • Re: (Score:3, Insightful)

          by element-o.p. (939033)
          Bruce Scheier cites a number of sources here [schneier.com]. The short answer is that it is very, very unlikely. First, the chemicals are difficult to work with under the best of circumstances. An airplane is not the best of circumstances. Second, the chemicals, being volatile organic compounds, have strong, unpleasant odors. While people may be expecting "strong, unpleasant" odors to be emanating from a bathroom, these would be unusual enough that even the least observant passengers on the airplane would b
      • by NevarMore (248971)

        Except for the fact that it's been shown by explosives experts and chemists alike that the "liquid explosive" theory is not viable. It is difficult to do under lab conditions and nearly impossible to do in the bathroom of an airplane. So, once again, it's knee jerk BS response.

        While the 'liquid bomb' plot is bogus, you can cause quite a bit of mayhem with a few ounces of powder or liquid.

        I'm no chemist but off the top of my head some carbide in a makeup jar then dumped into a water bottle would make a nice bang and possibly enough flame to start a fire.

        Anything that would smell bad, even a prank stink bomb, would fall well under the 3 oz. rule and cause mayhem.

        • by dgatwood (11270)

          Dude, unless something has changed since the TSA loosened the restrictions in 2007, you can bring a cigarette lighter on a plane. I'm no chemist, but I'm pretty certain that those can start a fire, and they aren't even banned....

        • by Tmack (593755)
          Calcium carbide, in rock form would work, just add water and you get acetylene gas. If you keep that contained and mixed with the proper amount of air before igniting, yeh, it makes a bright flash and loud boom. On a plane though, the rocks take a while to bubble away into the gas, and it smells very strongly of onions. Also, you need a very large amount to do anything serious, on the order of several large garbage bags full (caver rating scale: 2bagger, 3bagger...), stuff very unlikely to go unnoticed. Oth
          • by NevarMore (248971)

            Also, you need a very large amount to do anything serious, on the order of several large garbage bags full (caver rating scale: 2bagger, 3bagger...), stuff very unlikely to go unnoticed. Otherwise you get about the equivalent of a flash-bang.

            Its still enough. In some respects we've been lucky that the terrorists are out for a body count and a big show. Setting off a home made flash-bang in a populated, public, and supposedly secure place (like inside airport security in a trash can) and doing it frequently would have one of two effects:
            - make people numb to minor events, making it easier to go bigger and bigger
            - make people wake up as to how ineffective security is and make them realize they are responsible for their own safety

        • by Joce640k (829181)

          ....would fall well under the 3 oz. rule and cause mayhem.

          The "3 oz" rule is stupid anyway. What happens if a dozen people go through security with 2.9 ounces of something?

          (Answer: 34.8 ounces of whatever it is....)

      • I have very little knowlege of basic chemistry, but I do know a handful of thigns that can work. I mean ignoring the difficulty and danger in transport, would a water bottle filled with nitroglicerine be capable of dealing notable damage to an airplane?
        • An ounce or two of thermite is easier to arrange, get onto the plane, and ignite.

          • Best part of such a solution is that it isnt liquid.

          • True, though nitroglicerine could be very effective in checked luggage. From what I gathered it is safe when frozen. then extremely volitile to movement etc... Toss frozen nitroglicerine into your checked luggage, or sneak it into someone elses. it thaws out a couple hours into flight. First turbulance the plane hits, will be the last.
          • by Joce640k (829181)

            An ounce or two of thermite is easier to arrange, get onto the plane, and ignite.

            What, exactly, would an ounce of thermite do to an aircraft?

        • Or flush a small cube of sodium metal down the toilet?
        • by Joce640k (829181)

          I have very little knowlege of basic chemistry, but I do know a handful of thigns that can work. I mean ignoring the difficulty and danger in transport, would a water bottle filled with nitroglicerine be capable of dealing notable damage to an airplane?

          Why yes, yes it would.

          And if there's two people involved you can have *two* water bottles full of nitroglycerine.

      • You don't do it in the bathroom of the airplane, you do it in the bathroom at the terminal before you board. That way you can have a dozen contributors and only one person carries it onto the plane.
    • If they actually thought about their procedures then they would have to come to one of 2 conslusions:
      1. Any security they put in place will be ineffective and let through threads there for should be limited to truly dangerous things like knives, and guns (easy to pick out with a metal detector)
      2. Any security they put in place will be ineffective and let through threats there for to be secure we shouldn't allow people to fly.

      Personally if I wanted to bring down an airplane I would have a "laptop" but i
      • I've heard of some special (ceramic?) guns made that would make it through a metal detector and bullets are small enough to hide in the tray you slide past the metal detector with you watch/change (strangely those don't usually go through the scanner), though I'm not 100% sure they work. I DO however know that they make ceramic knives with NO metal, they are very common in marine work.
      • Why would you even bother to be on the plane, or buy a ticket?

        You know that the airlines will happily ship parcels from airport to airport, and those packages are not screened, right?

        THAT is why the entire TSA concept is such an offensive joke.

    • The TSA should engage in profiling, as the Israelis do. Although it's controversial [breitbart.com], the Israelis have managed to prevent any hijacking incidents since 1969 so they must be doing something right. Even the Israelis aren't perfect and sooner or later it's possible someone will slip through and cause a calamity, but so far they have demonstrated a more intelligent approach to airport security that does not require body scanner imaging technology such as the TSA has enthusiastically promoted.

      Oh jeez not this shit again. Is it going to take a string of Anders Behring Breivik-looking dudes to blow up American buildings before you idiots get the point? Profiling does not improve security. It lays down a temporary speedbump and introduces many vulnerabilities. An attacker only has to match the low-security racial profile to get through with reduced scrutiny. From a security standpoint alone it is a bad idea, the same reason AV apps don't only scan files handled by IE, Adobe Reader, JRE and Flash, t

      • by Microlith (54737)

        IIRC, the profiling in Israel is done by trained military officers.

        But yes, I expect that "profiling" in the US as done by TSA 'agents' would consist mostly of "he's dark skinned, so we searched him."

      • by Anonymous Coward

        "Profiling" does not necessarily equal "racial profiling." However, given American history, many people will assume with good historical evidence that governmental agents would equate the two, or at least would be inclined to do so. Given this reaction, the profiling of airline passengers is politically untenable, and looks to remain so for a long time.

      • by Anonymous Coward

        The Israelis use BEHAVIORAL profiling, not RACIAL profiling. Big difference.

        http://www.monstersandcritics.com/news/middleeast/features/article_1547409.php/Israeli-airport-security-skips-scanners-favours-profiling-Feature

        http://sikhcoalition.wordpress.com/2010/01/14/racial-profiling-doesn%E2%80%99t-work-says-israeli-airport-security-chief/

        • That's what they claim, but the history of racial profiling accusations is too long to ignore, and was the subject of the article in vog's post.

      • So how is this any different than the "security" we have now? To date there has been ZERO actual threats stopped by TSA. Zero. Go ahead and spout the nonsense about, "anouncing successes merely gives info to the terrorists..." That is garbage and you know it. The few terrorist plots that HAVE been exposed were done by police. Actual cops, not TSA rent-a-cops. Every procedure by TSA has been reactionary to, "they might do this"
    • by sjames (1099)

      There was no attempt. There was a group of people thinking about considering attempting that. They had not taken any concrete steps in that direction (such as getting their passport, buying tickets, or obtaining the explosive liquids).

    • The TSA should engage in profiling, as the Israelis do.

      That would require TSA hiring and training intelligent people instead of farming out the work to politically well connected corporations that much rather hire employees being paid minimum wage.

    • by Geoffrey.landis (926948) on Tuesday August 30, 2011 @03:05PM (#37257476) Homepage

      The TSA should engage in profiling, as the Israelis do.

      They do not. Who made up that myth? In fact, the Israelis explicitly state that they don't trust profiling because terrorists will find out what the profile is, and use terrorists who don't match it. They do intensive, one-on-one interviews with all passengers.

    • by 0123456 (636235)

      The TSA should engage in profiling, as the Israelis do. Although it's controversial [breitbart.com], the Israelis have managed to prevent any hijacking incidents since 1969 so they must be doing something right.

      When was the last time they actually caught a hijacker at the airport? Or, indeed, a terrorist of any description?

      You may be right, but I can't think of any news reports in the last twenty years or so.

      • by treeves (963993)

        Whether it works by detection or works by deterrence does not matter. It works. It doesn't expose people to radiation or groping. It perhaps requires more time, more skill, and less equipment.

        • And this amazing brown pebble I keep in my pocket prevents cougar attacks, but only because I say so out loud every morning when I'm camping.
    • One thing that concerns me most is that these devices are not regulatory controlled like medical devices.
      As the machine is installed I assume the tech made sure all is A okay, however, what about 3 months from now...?
      I cannot find the article but read earlier that all these security devices need is a sticker on the outside that states that is it safe to use on humans (while no bunnies were harmed in the process), whereas medical devices are checked by certified professionals on a regular interval.

      I fly enou

    • by kbg (241421)
      The liquid sizes I have never understood. What is there to stop the terrorist to combine their liquids? For example if there are five terrorists like on 9/11? Then you have about half a liter of explosives, so this arbitrary rule basically has no effect
  • by obarthelemy (160321) on Tuesday August 30, 2011 @02:33PM (#37257090)

    This body scanning stuff seems so inefficient and stupid, I'm guessing someone in the decision process must be lining their pockets ?

  • no one likes to admit they were wrong... and they are asking the same court/people to admit they were wrong the first time... very unlikely to happen... though I guess they can always appeal that judgement if all fails

    • That's exactly right. The TSA is going to keep making you take off your belt and shoes and empty all your pockets, otherwise they will be admitting they didn't really need to do it in the first place. Like those small town prosecutors on the TV news magazines, who refuse to believe that the guy the wrongly convicted isn't guilty, even though he had an alibi and the DNA evidence confirms it wasn't him.

    • by Imrik (148191)

      It's not so much that they expect the court to admit its mistake, it's that they want the request to the lower court to be on record when they appeal.

  • How often do judges admit they were wrong when presented with additional evidence? If they were so biased as to infer things that weren't even claimed by the DHS, are they going to admit they made a mistake or hedge and hide in the gray areas? Seems like an appeal to a higher court may get better results, but IANAL and don't understand the possible options or reasoning goes into these decision.

    • by Lifyre (960576)

      I have no idea how often but it isn't unheard of (ex: RIAA vs Jamie Thomas) and this is just the next step in the appeals process. If understand correctly it will ultimately make it easier for them to appeal to a higher court should this court reaffirm the previous ruling.

  • I was looking forward to seeing legal arguments presented by Jazz Jackrabbit and Jill of the Jungle.

    Especially Jill of the Jungle...
  • I let the body scanner operators know how lame they are by giving a double overhead middle finger pose in the machine.

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