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Old 11-24-2010, 08:07 AM   #1
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Legal Question

For any attorneys who might wish to comment:

I sthere any conceivable legitimate grounds for legal action against either the TSA or the manufacturers of the porno-scanners? I am wondering whether the stakes could be raised via either a mass of individual actions or a big, honking class action or two (how about a 10 million member class action).
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Old 11-24-2010, 08:34 AM   #2
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Quote:
Originally Posted by brewer12345 View Post
For any attorneys who might wish to comment:

I sthere any conceivable legitimate grounds for legal action against either the TSA or the manufacturers of the porno-scanners? I am wondering whether the stakes could be raised via either a mass of individual actions or a big, honking class action or two (how about a 10 million member class action).
I don't see any grounds for legal action. What the scanners do is not, and has never been, a secret. so no-one can claim to be duped into going through them.

You don't have to be scanned, you can choose to be patted down or not fly.

Back in the early 70's in England we had to submit to pat downs to even get into a nightclub following the IRA bombing of one in Birmingham that killed or injured over 200. In recent years, during heightened alerts, I have had to submit to pat downs at Manchester Airport 3 times coming back to the USA (and yes, my 'junk' was touched).

No big deal.
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Old 11-24-2010, 08:56 AM   #3
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(and yes, my 'junk' was touched).

No big deal.

ummm...speaking only for yourself, of course.....lol!
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Old 11-24-2010, 09:00 AM   #4
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ummm...speaking only for yourself, of course.....lol!
yeah, the airlines would do it only once, but you could leave and re-enter the night club as many times as you wanted.
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Old 11-24-2010, 09:10 AM   #5
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yeah, the airlines would do it only once, but you could leave and re-enter the night club as many times as you wanted.

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Old 11-24-2010, 09:39 AM   #6
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Back in the early 70's in England we had to submit to pat downs to even get into a nightclub following the IRA bombing of one in Birmingham that killed or injured over 200. In recent years, during heightened alerts, I have had to submit to pat downs at Manchester Airport 3 times coming back to the USA (and yes, my 'junk' was touched).
.
I received an extremely thorough frisking on the boarding ramp (in full view of the public) to the airplane I was taking from Heathrow to Ohare in that time frame. The person doing the frisking was a young man wearing a civilian suit and tie standing on the side of the ramp as we passed by. We made eye contact and he waved for me to step aside, showed me his badge and ordered me to lean against the wall, feet spread. He patted me down with great attention to detail and curtly told me to go on my way. When I asked for an explanation, he repeated his command saying "move ahead now."

I remember it vividly despite the years. I'm sure I was the victim of profiling due to my appearance and racial heritage. But for some reason, given all that was going on in that arena in those days, I just went and sat down with no intention of whining about it. It's been a great story to share with pub buddies over the years.
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Old 11-24-2010, 10:03 AM   #7
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Not legal advice, but just my opinion shootin from the hip:

I would say yes for legitimate grounds, but the issue is really whether it will be successful under US Supreme Ct balancing jurisprudence for the health, safety and welfare of the population vs. these types of searches (i.e., what is 'reasonable' under the 4th amendment). It's a hugely complicated mess of intersecting international, federal, state and local law.

Decide for yourself with the following.
United States Code: Title 42,1983. Civil action for deprivation of rights | LII / Legal Information Institute

Add in the 4th:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

Also keep in mind the possibility that the TSA is violating state or local laws (the execution of the search in unlawful even if they are not 4th violations on their face). A DA might be willing to try to prosecute the individual employees. It probably wouldn't work for many reasons, but it might scare the TSA employees to go easy on the junk search.
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Old 11-24-2010, 10:26 AM   #8
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Quote:
Originally Posted by Alan View Post
Back in the early 70's in England we had to submit to pat downs to even get into a nightclub following the IRA bombing of one in Birmingham that killed or injured over 200. In recent years, during heightened alerts, I have had to submit to pat downs at Manchester Airport 3 times coming back to the USA (and yes, my 'junk' was touched).
Alan,
I know very little about laws in England, but I seem to recall reading that there is very little protection against searches outside of one's home. I think it was the historical basis for the quote that a man's home is his castle. The protections are most based on illegal seizure of property. It seems like there is much less cultural resistance to this sort of search in England as well. Do you care to comment on either given your history?
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Old 11-24-2010, 11:38 AM   #9
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Alan,
I know very little about laws in England, but I seem to recall reading that there is very little protection against searches outside of one's home. I think it was the historical basis for the quote that a man's home is his castle. The protections are most based on illegal seizure of property. It seems like there is much less cultural resistance to this sort of search in England as well. Do you care to comment on either given your history?
I think the privacy laws are probably stronger in Europe than the USA (the UK is covered by European laws these days). One example I am aware of where it differs to the USA is in e-mail on company computers. In the USA the content of everyone's e-mail is searchable by the company while in Europe, including England, it is unlawful for an employer to read a person's e-mail even though he is providing all the equipment and services for that e-mail.

The same is true, and I believe always has been in my lifetime, for personal searches inside or outside the home. The UK public has been subject to homeland terrorist acts for decades and I believe they are much more willingly to put up with searches to help with security. The examples I gave earlier were voluntary in that you could always choose not to go to the nightclub, or wherever. The first time I went to see the Tower of London (in the 70's) we had to undergo thorough searches to get in, as a bomb had been detonated killing and injuring tourists in 1974.

There were more people killed by terrorist acts in the UK in the 30 years leading up to 9/11 than on 9/11 itself (an average of about 100 per year) and that builds a tolerance to inconvenience and searches. I hope and pray that such frequency never happens in the USA.

The UK's increased powers of stop and search under their recent anti-terrorism act was over turned by the European court this year.

Stop and search powers rejected

Quote:
In January 2010 the European Court held that section 44 of the Terrorism Act 2000 (the broad police power to stop and search without suspicion) violates the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights (Gillan and Quinton v. UK 4158/05 [2010] ECHR 28 (12 January 2010)). The claimants received £500 each by way of compensation.
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Old 11-24-2010, 02:14 PM   #10
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I'm not an attorney but understanding search and seizure case law was a big part of the j*b. Amongst the sick & twisted aftermath of it all is an affinity to reading case law.

I'm still reading on what I've found, but I'm increasingly becoming convinced that this issue is best resolved politically. The Supremes and the Circuits seem to allow a lot when it comes to administrative searches (and most of the prohibitions are against law enforcement subverting administrative searches to their own needs). Think along the lines of "Well, the government has a responsibility to protect you from X, or regulate Z activity, and you voluntarily engaged in this commercial activity, or cross the border, so....tough. Live with it."

(Yes, I understand that people have alternatives to flying, no matter how difficult it is to get to Hawaii by swimming or sailing, but now Napolitano is saying that they could extend all of this to trains, buses, maritime, etc. We do have a right to move around the country, and to me this security paranoia fueled insanity has gone too far.)

To me this is an issue of reasonableness, as in "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..." But proving that in a lawsuit may be tricksy.

It's time that our elected officials become aware of how their constituents feel about the TSA's most recent efforts.

Along those lines, has anyone else noticed that both sides of the American political spectrum are equally enraged by all this? It has been funny reading comments and forum threads across the internet - many claiming the other side is letting this happen. There was a long thread on Democratic Underground that I found hilarious as they discovered that conservatives were just as fired up about this as they were.

The TSA is a scam run by career federal employees who are all looking to pad their budgets and increase the size of their kingdoms while being mostly lacking in common sense. It is an agency that feels it is not bound by the Constitution and its foolishness needs to be curtailed severely.
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Old 11-24-2010, 02:53 PM   #11
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Actually, I will go out on a limb and say that enhancement of state power (especially by the executive branch) is pursued vigorously by anyone who even has a hope of achieving it, regardless of their affiliation. Similarly, bureaucracies seek to grow in size and extend their reach no matter what it is they were originally created to do. And with respect to the latter, there seems to be an inverse square law with respect to the relation of a bureaucracy's size and the amount of common sense it exhibits.
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Old 11-24-2010, 03:01 PM   #12
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My, those searches do arouse the competitive spirit in so many people!

After 9/11 The People said "This cannot be allowed to happen again! Government must DO something!"

So The Government did.

Now everyone is complaining about it.

Can't have it both ways folks. Perfect security comes at a very high price in mobility, convenience and freedoms.

Those old enough will remember that the Viet Cong were not above using women, children and grandmothers to move explosives and plant bombs. Why? Because it worked.
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Old 11-24-2010, 04:26 PM   #13
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a lawyer friend of mine referred me to Patriot act when I posted to facebook that the TSA searches were unconstitutional
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Old 11-24-2010, 04:27 PM   #14
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Well, that did not take long at all:

Arkansas Man Files Lawsuit Against TSA Use Of Full Body Scanners – Indyposted
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Old 11-24-2010, 07:00 PM   #15
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In terms of suing, I could see the TSA employees calling in OSHA or some other agency. When I see the photos of the patter-downers, I think it's as bad or worse to to be the patter as the pattee. And ergonomically it looks like a tiring job.

http://labornotes.org/blogs/2010/11/...erverts-creeps
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Old 11-24-2010, 08:20 PM   #16
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Not legal advice, but just my opinion shootin from the hip:

I would say yes for legitimate grounds, but the issue is really whether it will be successful under US Supreme Ct balancing jurisprudence for the health, safety and welfare of the population vs. these types of searches (i.e., what is 'reasonable' under the 4th amendment). It's a hugely complicated mess of intersecting international, federal, state and local law.

Decide for yourself with the following.
United States Code: Title 42,1983. Civil action for deprivation of rights | LII / Legal Information Institute

Add in the 4th:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

Also keep in mind the possibility that the TSA is violating state or local laws (the execution of the search in unlawful even if they are not 4th violations on their face). A DA might be willing to try to prosecute the individual employees. It probably wouldn't work for many reasons, but it might scare the TSA employees to go easy on the junk search.

No dice at least on the cite you give. 42 usc 1983 does not apply to the feds but to the state
TITLE 42 > CHAPTER 21 > SUBCHAPTER I > § 1983
Prev | Next

§ 1983. Civil action for deprivation of rights

How Current is This?

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia

Federal law within its jurisdiction preempts any local law. and Congress clearly has total power over interstate commerce

Its a regulatory not a criminal search.
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Old 11-24-2010, 09:03 PM   #17
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A concealed weapon site convinced me of the very real need to check the ahem, junk drawers. I don't like being frisked, but pity the poor person that has to do it all day. What a way to make a living.
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