POLITICS
03/26/2013 07:04 pm ET Updated Mar 27, 2013

TSA Airport Screening Lawsuit Nears Court Date To Challenge Intrusive Searches

NEW YORK -- A lawsuit against the Transportation Security Administration over its airport security procedures is heading to a court hearing next week, following a Friday order in the case that could give the government extra headaches.

Two Harvard law students brought the suit in 2010, arguing that their Fourth Amendment right against unreasonable searches was being violated by "nude body scanners" and "enhanced pat-downs." A federal district court threw out their case, but the U.S. Court of Appeals for the 1st Circuit will hear their appeal on April 3.

In a twist, the 1st Circuit on Friday also granted a request from a group called Freedom To Travel USA to make its own appearance during the oral arguments. The group would like the courts to conduct a fact-finding mission on the intrusiveness of the TSA's search techniques before the 1st Circuit rules directly on their constitutionality. If the appeals court agrees, it could begin to peel back some of the secrecy surrounding screening.

"The scanners and patdowns have not been tested in the court of law," said Freedom To Travel USA co-founder Jeff Pierce. "What we're looking for is a fair test in a court of law."

The two Harvard students who launched the case, Jeffrey Redfern and Anant Pradhan, referred The Huffington Post's inquiries to Freedom To Travel USA.

Co-founders of the advocacy group say it is an effort by ordinary citizens to dig up more information on the TSA's screening programs. In addition to Pierce, a businessman, the group was launched by Renee Beeker, a nonprofit executive, and Wendy Thomson, a retired management consultant.

"We have the oddest coalition, all the way from A to Z," said Thomson, claiming both Occupy arrestees and "very, very conservative people" as supporters.

"We wanted to take the high road and bring forth actual facts and follow the news and do things along the legal avenue, instead of just taking the emotional avenue," she said.

In its friend-of-the-court brief in Redfern v. Napolitano, Freedom To Travel USA argues that the TSA has disclosed far too little about the capabilities of its scanners. "Many Americans have reported experiencing humiliation, fear, and a total loss of dignity," Freedom To Travel USA writes. It is time, the group contends, for the courts to essentially turn the tables on the agency, performing "a fact-intensive review of the TSA searches' unprecedented level of intrusiveness."

The TSA did not immediately respond to a request for comment on the Redfern lawsuit. Its lawyers successfully argued to the district court that the case should be dismissed on the narrow grounds that under the relevant law, the plaintiffs should have filed their lawsuit directly with an appeals court.

In October, the Supreme Court rejected without comment an appeal in a similar case in which a plaintiff sought to bring a lawsuit in a district court. The lower courts generally have more leeway to investigate facts -- a critical goal for TSA critics who would like the agency to open up about its procedures.

Redfern, Pradhan and Freedom To Travel USA have had their arguments hampered by that same shroud of agency secrecy. Volumes of administrative records on TSA screening procedures have been introduced into the court record only under seal, some not even available to the plaintiffs.

In a March 20 court filing, a U.S. Department of Justice lawyer representing the TSA asked to be allowed to introduce documents describing why the agency is discontinuing the use of one form of scanning machine, the highly controversial X-ray backscatter device. The agency said that its reasoning was protected as "Sensitive Security Information" and that it was "in the process of creating a redacted, publicly releasable version" of the document.

A separate lawsuit, filed against the agency by the Electronic Privacy Information Center (EPIC), yielded some modest results on Tuesday. In a belated response to a 2011 ruling by the D.C. Circuit Court of Appeals, the TSA opened up a public comment period on its use of body scanners.

The TSA's move will not likely satisfy critics, who say the agency has released too little information about the privacy and health implications of its devices. "What is there to comment on?" asked Jim Harper, director of information policy studies for the Cato Institute, on his blog. "The TSA's brief document defends a hopelessly vague policy statement instead of the articulation that the court asked for. And as to the policy we all know it's implementing, TSA hides behind the skirts of government secrecy."

EPIC scored another court victory earlier in March, when a federal judge found that the Department of Homeland Security should have released two studies on the safety of radiation-emitting scanners in response to a records request.

Traditionally, the courts have been deferential to the government when it comes to airline screening. In 2006, the 9th Circuit Court of Appeals dismissed a privacy advocate's challenge to TSA rules forcing passengers to either present ID or submit to an extensive search before boarding planes. The plaintiff in that case had made a similar argument that the TSA should be forced to reveal more detail about its security procedures.

The three 1st Circuit judges who will hear the Redfern case have multiple options: They could accept the government's argument and dismiss the case, send the case back to the district court for more argument and possibly a trial, or order a fact-finding effort to determine how intrusive TSA screening is.

"Our agenda is to put a spotlight on what's happening, so that at least whatever's happening goes through the rigor of discovery and evidence and logic," said Thompson of Freedom To Travel USA. "We don't believe that has happened yet."

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