The constitutional legality of TSA body scanners could be heading to the U.S. Supreme Court after U.S. Circuit Judge Beverly B. Martin issued a dissenting opinion in a case brought by activist Jonathan Corbett, a Florida man who proved that the machines could easily be fooled.
In 2012, Corbett demonstrated how the body scanners could be tricked into missing a concealed weapon if the item was sown into a side pocket on a traveler’s clothing.
Last month, researchers at the University of California-San Diego, University of Michigan, and Johns Hopkins University also presented evidence proving the scanners can be fooled by anyone hiding a weapon on the side of his or her body to render it invisible against the scan’s black background.
Corbett’s case was dismissed this week by the 11th District Court of Appeals, but not because his assertions were incorrect. The court also completely failed to consider the independent evidence produced by the three universities.
“Two of three judges on the appellate panel dismissed Jonathan Corbett’s complaint against the TSA’s airport screening procedures on the grounds that his failure to file it within a 60-day deadline from the date at which the Department of Homeland Security agency first deployed full-body X-ray scanners at U.S. airports made it “untimely” on claim-processing grounds,” reports PC Mag.
However, Corbett asserts that he filed the first court challenge of the constitutionality of the scanners within days of the TSA’s announcement that the machines would be rolled out nationwide in 2010.
“You see, Congress wrote a law that says “orders” of the TSA must be challenged within 30 days, and the government interpreted this to mean that: 1) even if they keep doing the objectionable behavior (i.e. scanning and groping) daily, after they’ve done it for 30 days, it can never be challenged by anyone, and 2) the 30 days shouldn’t be from when I started my case, but from when I proceeded in the court that they preferred. I asked the court to refuse to adopt this absurd proposition and allow me an opportunity to gather and examine facts before the court,” writes Corbett.
In an addendum to the majority opinion, dissenting Judge Beverly B. Martin noted that the court’s opinion that Corbett’s fourth amendment claims were baseless was a superfluous measure, arguing it was established “[l]ong ago … that courts should not ‘decide questions of a Constitutional nature unless absolutely necessary to a decision of the case.'”
Despite the case being thrown out by the court, Judge Martin’s dissenting opinion means the case could be looked at by the Supreme Court, according to Corbett.
“Because there was a split between the judges, there is a higher chance now that the case will be accepted for review by either the full 11th Circuit or by the U.S. Supreme Court,” Corbett wrote on his blog, while vowing to file a new petition to ask the full 11th Circuit to hear the case next week.
Watch Corbett’s demonstration of how TSA body scanners can easily be fooled in the video below, which has received over 2.2 million views.