Another lawsuit filed against the TSA

ACLU-v-ashcroft-redacted
We at TSA News have written before about the particularly egregious violations perpetrated upon the disabled (or, more precisely, those who with the assistance of medical devices function quite well) by the TSA. (See here, here, and here.) A stalwart professor is now taking the TSA on in court.

Dr. Mary Beth Ruskai has had enough. Ruskai has filed suit in the First District Court of Appeals in Boston. She is the recipient of metal joint implants, and is challenging the current TSA practice of full body searches when her knee or hip implants alarm.

Ruskai contends that her breasts, waistband, and inner thighs have nothing to do with her hips and knee setting off the metal detector, and that none of the above has anything to do with her presenting a flight risk. Ruskai travels with copies of her own x-rays, to show her metal implants. She’s also a Pre-Check member. She was wearing shorts when she went through security and when, she says, her pubic area was “searched” by the TSA. Here’s complete information from Ruskai’s attorney’s website.

And here are some excerpts from the government’s redacted response to Ruskai’s case:

The standard patdown covers the full body, with screeners using the backs of their hands for sensitive areas. See AR 5154-57/Supp. JA 298-301. _______________ REDACTED _____________________ __________________________________________________
___REDACTED _______________________. AR 5157-58/Supp. JA 301-02.

. . . Later in January 2012, TSA also responded to Ruskai’s complaint. AR 1895- 97/JA 168-70. TSA explained that the patdowns Ruskai described “do not appear to be inconsistent with our standard procedures,” and it addressed Ruskai’s concerns with those procedures. AR 1895/JA 168. TSA responded to Ruskai’s suggestion that triggering an alarm should not necessitate a patdown if an individual has a visible surgical scar or can provide medical documentation of an implant. TSA explained that “[w]hen a walk-through metal detector alarms, it does not indicate where on the body the metal is located, so our officers must ensure that no metallic threats are present on any part of the body.” AR 1895/JA 168 (emphasis added). The agency further noted that “medical documentation is not sufficient to prove that a threat is not present on a passenger.” AR 1896/JA 169.

TSA also responded to Ruskai’s suggestion that screeners should use a hand- held metal detector rather than its current patdown procedures. The agency explained that hand-held metal detectors were discontinued in late 2010 “for security reasons” . . . .

Lots more redactions at the link.

As a mathematics professor, Dr. Ruskai certainly understands correlation. As in: the correlation between having a metal knee and being a terrorist is zero. It may very well present a negative correlation (which means that the presence of a metal joint presents a less likely risk than that presented by the general population).

The attorneys started their oral arguments with a reference to a “bedrock Fourth Amendment right of being secure in their persons.” That’s a great start.

It’s very interesting that this Court is hearing this case. This is the same Court that heard Redfern et al v. Napolitano last year. The Court allowed oral arguments from Freedom to Travel USA as an amicus (I’m a founding member of FTTUSA). We assume that indicates that the Court has more than a passing interest in the degree of invasiveness of TSA’s pat-downs. The Redfern case was eventually dismissed as moot since the original complaint was against the backscatter scanners, which have since been replaced by millimeter-wave scanners.

We would encourage you to listen to the opening oral argument here. The “might as well” section around minute 9 is very pertinent: “the mere fact that you trip the metal detector doesn’t necessarily mean” that a person is carrying a metallic or non-metallic threat.

Exactly.

These Justices are asking, in many instances, the correct questions. Let’s hope they follow through, limiting searches to those who truly present a risk, and forcing changes to the search procedure that actually shows a viable correlation between a traveler’s physical condition and the scope of an additional security search.

Viable correlation: what a novel concept.

(Graphic courtesy of the ACLU)