On 23 December 2014, just before Christmas, the First Circuit Court of Appeals released its decision in favor of the TSA in Ruskai v. Pistole. This was deeply disappointing.
Media and blog reactions:
- TSA Pat-Down Procedures Survive 1st Cir. Scrutiny
- Court Rejects Professorís TSA Pat-Down Challenge
- Court rules against Prof. Ruskai in TSA case
- TSA News: Court rules against Prof. Ruskai in TSA case
- Be afraid, written by one of Judge Kayatta's former law partners.
Reactions to the decision:
- The court essentially rendered the case "moot" by viewing it as a "shrinking problem" and ignoring the fact that some people at some checkpoints still had to undergo these invasive patdowns. In addition, two significant developments during the 11 months the court deliberated raise some questions as to how much the problem is really "shrinking":
- In March 2014 GAO-14-357 was released, which states that TSA's procurement of second generation AIT scanners is behind schedule and, moreover, much additional work needs to be done before TSA purchases more scanners.
- The court ignored the fact that as the number of Pre-Check points has increased, so has the invasiveness of the pat-downs.
- The court appears not to have taken into account citations to important reports from such authoritative sources as the GAO and the NRC, even when they proved that TSA had been deceptive and acted in "bad faith".
- The court allowed (p. 20, footnote 4) "streamlining procedures" to trump the fourth amendment even without a clear security issue.
- The court only grudgingly admitted that some people find the procedures invasive, although the TSA itself has admitted that they were invasive and even stated twice in the administrative record:
"Manual patdowns are time-consuming, potentially ineffective, and can cause passengers embarrassment and stress resulting from being physically touched by a stranger. "
Before discussing these and other issues in more detail, I want to emphasize a subtle but important point raised in oral arguments.
If TSA needs to give a passenger some screening, why not give them the full pat-down?
The answer is simple: GAO-14-357 describes in detail the importance of collecting and analyzing data that could enhance performance. Although that report is about AIT scanners, this issue is discussed elsewhere in regard to baggage screening. Regulatory and administrative documents call for agencies to "... identify, capture and distribute operational data to determine whether an agency is meeting its goals and effectively using resources." This fundamental principle is as valid at checkpoints with only WTMD as at those equipped with scanners. Without first determining what metal object on or within a passenger set off the WTMD, the TSA can not even begin this process which is required by law. And if the result of this initial screening indicates nothing more innocuous than a metal knee or hip, there is no reason to subject the passenger to an invasive pat-down.
TSA has gone to considerable effort to minimize the effects of false positives and false alarms with AIT scanners and baggage screening. Why shouldn't they do the same at checkpoints with only WTMD? Indeed, as noted in GAO-14-357 (p. 15):
Standards for Internal Control in the Federal Government calls for agencies to identify, capture, and distribute operational data to determine whether an agency is meeting its goals and effectively using resources.