Dr. Spengler: I'm worried, Arlet. It's getting crowded in there and all my data points point to something big on the horizon.

Winston: What do you mean, big?

Dr. Spengler: Well, let's say this hot dog represents the normal amount of pork for NASA. Based on this morning's test, it would be a hot dog. . . thirty-five feet long, weighing approximately six hundred pounds.

Winston: That's a big hot dog.

I don't know how law works in Australia, so take this as an answer to your question that is applicable in the US but maybe not AUS. First, there is no "innocent until proven guilty" well anywhere except TV and armchair attorneys. It's "burden of going forward" and "burden of persuasion." But it's irrelevant here anyway. There is no "guilty" in civil court. It's liable not liable. Second, an injunction is not relief. An injunction is merely to maintain the status quo to prevent any irreparable harm while the court sorts out the case. Here, if Samsung could sell the tablet then what's the point of the case? If it gets released then even if an infringement ruling came down the damage is already done. You can't take back the Tabs. So the judge granted the injunction (which is not indicative of future rulings) to keep the status quo which was no Galaxy Tab in AUS.

HTH.

It doesn't apply to "cases which aren't frivolous?" Awesome, who decides what's frivolous and what's not? I thought I knew frivolous cases from reading newspapers. Then I went to law school and actually read the cases. Give me an example of what you consider a frivolous case.

And court fees are always the domain of the court. I do 8th amendment/1983 actions which allow fee shifting but doesn't require it. What you really want is universal fee shifting. And that's OK, my Advanced Civil Procedure Professor wanted it as well. I just disagreed with the results of such a measure. The UK does have it if you want to see it in practice.

Here's my professor's Amazon page for his books:
http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Robert%20Hardaway
No, he couldn't remember anyone's name, but he knows everything about law. Even if he's wrong about universal fee shifting.

The court can always charge a side with legal fees if the lawsuit is without merit. What you actually want is universal fee shifting. Sounds great until you consider every company will pay their attorneys 1,000 dollars an hour. No suits will be brought.

As an attorney I think you're on to something and should push this as hard as possible. However, be aware that your idea give companies even greater power. Right now it's everyone pays their own fees with fee shifting in certain statutory situations and meritless cases. But if you had your way I could work 100 hours a year and make 100,000 dollars since companies would just use my fee as a intimidation tactic. Fine with me, but bad for you.

I guess if you don't care I don't.

The ruling would constitute persuasive authority in other circuits not precedent. I'm in the 10th circuit, so if I had a case like this I would say something along the lines of "Although this issue is one of first impression in the 10th Circuit, the 1st Circuit recently examined this very issue. In CASE X it was held that . . .." It just tells the court that this circuit hasn't seen the issue, yet, and the other circuit[s] that have held a certain way. It doesn't mean they have to follow it.

The problem is that an inalienable is not non waiverable. You can waive your 4th Amendment right but you still have the option to revoke that waiver. The issue with disallowing a waiver of 4th Amendment rights is that you'd need an attorney and the court system for everything. It's also a personal freedom issue. Shouldn't a rationale American citizen be allowed to waiver their rights if they want to? I don't know. It's a balance of virtues issue. On one hand the restriction such a rule would place on government authority would be huge, but then the additional legal requirements could backfire on the gains.

You can't consent to an unreasonable search now. That's where I think a lot of people go wrong. They really just want TSA searches to be unreasonable and therefore illegal. Except, unreasonable is a legal term of art that uses an objective standard. To claim it's an unreasonable search you'd have to differentiate it from DUI checkpoints. A checkpoint must not be roving, and cannot be for general law enforcement. TSA checkpoints don't move and they are searching for impermissible items not for general law enforcement. DUI checkpoints are constitutional so you'd have to prove to the court why the two differ. That goes back to the fundamental right argument. Driving is not a fundamental right so if air travel was the two checkpoints would be different and DUI checkpoint constitutionality couldn't be used to shield TSA checkpoints. Without the fundamental right status then TSA searches are as reasonable as DUI checkpoint searches or parole officer searches or police searches. So with TSA you are consenting to a reasonable search not an unreasonable one.

And thank you for being civil. I'm more interested in the workings of law than I am TSA specifically. It's like being a coder that reverse engineers software because they want to see how it works. I like being called a "dictatorship apologist" as much as a coder likes being called "hacker," "cracker," or "thief" by software companies just because you want to understand how something works.

I replied to shaitland with a more detailed response. Both of you are hitting on the same question which is air travel should be a fundamental right and if it were wouldn't that negate the consent issue? And the answer is almost certainly. The problem is that it hasn't been held to be fundamental. I think I made a strong constitutional argument for why it should be, but the Supreme Court has not held that and may never. Therefore the consent issues still hold until that happens.

Concerning your statement that I somehow believe that murder or stabbing a person is a consentable act, I don't know where you get that.

First, I'm not sure what you're even getting at. I can see three different readings. First, that a person cannot consent to be killed. Second, that a person cannot consent to be murdered. Third, that a person cannot consent to be killed/murdered by a TSA agent or other government actor.

First, a person can consent to be killed it's called physician assisted suicide. Some states, I believe Oregon is one, do have this law.

Second, you cannot consent to be murdered. This also covers consent to be killed by a non physician. Here's the problem with your example: there is no consent element in a murder charge. The prosecutor doesn't have to prove that the victim didn't consent. The defendant could claim that the victim consented in some way and try to get the charge reduced from murder to manslaughter, but that's a mitigation defense aimed at the jury not a question of law. In practical terms, that means you would file a motion for summary judgment with an affirmative defense of consent. The court will just throw it out, but feel free to tell the jury that. But, the court would never consider this so there really isn't any Fourth Amendment implication. Further, private citizens are not bound by the Fourth Amendment and so cannot violate your rights. That means consent doctrine with a private citizen is inapplicable. Feel free to break down your neighbors door and take pictures of all his illegal activities. You'll be charged with trespassing and other charges but the police will be able to use whatever you find even sans warrant.

Third, if a government actor, TSA agent, officer, FBI, DEA, stabs you for no reason then they are acting outside of their authority and are considered a normal citizen. Again, can't consent to murder so still not an issue, and the private citizen cannot violate your Fourth Amendment rights so there is obviously no need for consent.

The basic premise of your analogy is flawed. You can consent to waive your Fourth Amendment rights but cannot consent to murder. Your premise would be correct if TSA searches were illegal, but that's the problem I talked about in my first post. You'd have to distinguish TSA searches from all others just like it. I don't see how you can do that so your consent to a crime analogy is out. However, if it were held that TSA searches are criminal then it's in, but then we wouldn't be having this conversation.

In summation, you can either get the Supreme Court to elevate air travel to fundamental right status or show that TSA searches are all illegal. Either way and your aces. Problem is TSA searches have constitutional parallels you'd have to navigate while the fundamental right path builds off the Supreme Court's own rulings. I'd go fundamental right which would solve all these problems, and you wouldn't have to explain how TSA searches are different than every other governmental agency search.

Here's the problem, if you attack consent first then you'll get a rational basis standard (the screaming you just heard is a million attorneys crying in pain). All the government here will have to prove is that it had a rational reason to believe that increased security would lower terrorist acts. It doesn't have to prove efficacy or that other methods would work. It only has to prove it had a rational reason. It's basically a win for the government. Now, it has lost a few times for example Romer v. Evans and Lawrence v. Texas, but it is rare.

So, taking your business example to attack consent all the government would have to do is provide Congressional Hearing records that show that it did research on whether increased security can lower terrorism rates. When Congress holds hearings it stands in place of the fact finder (jury or judge). That means the court can't contest the findings. Similar to an appellate court cannot disregard jury or trial court judge findings. This is a sure thing, again remember, the government doesn't have to prove it works or less intrusive methods work just as well. That's beyond the scope of a rational basis review.

Furthermore, the Court will just consider other technologies you may use such as telecommuniting, mail, email, video conferencing, or hiring an agent. Again, these don't have to be comparable or equal, just available. Under rational basis an argument of "I prefer to meet face-to-face" isn't going to work.

But I think what you're getting at, and I wasn't clear on this, if airline travel was decided to be a fundamental right wouldn't that then eliminate the consent issue? Probably. That's why I went fundamental right first. It's sort of a armor piercing round. Get airline travel to fundamental right status then attack consent and get a strict scrutiny review (did you hear the million *whews*). This flips the government's requirements. Now it does have to prove that 1) its tactics work and 2) that there is no less invasive/discriminatory alternative. I don't think current TSA tactics pass either.

I think your post hits on what I didn't clearly describe. That is, once you get heightened scrutiny you can attack TSA (at airports only) in 1,000 different ways. It would be stripped to almost nothing since strict scrutiny is so hard to meet. But if you just made a business necessity argument against consent you'd get rational basis and lose. I'd use the business argument to pile on. My main argument is this: in Heart of Atlanta Motel the ability to travel nationally was held to be a fundamental right, but that was before international jet setting became commonplace. Since international travel is no common shouldn't the ability to travel internationally also being fundamental? Shouldn't American citizens have the fundamental right to travel internationally? I think the Supreme Court buys that. It's too close to what it's already held. In that case it was held that forcing minorities to endlessly search for a hotel or restaurant that would serve them unconstitutionally infringed that right to travel. Similarly, forcing US citizens to forego vacation or travelling for years to accumulate the days necessary to travel is likewise an unconstitutional infringement. Just like forcing minorities to drive around the government cannot force citizens to waste weeks of their time on travel just to avoid an unnecessarily invasive search. Plane travel is the only way for US citizens to fully utilize their right to travel internationally. No other mode of transportation does what flying does. The government cannot force US citizens to sleep in their cars because the hotel will not have them. The government cannot force US Citizens to spend a week on a boat just because they wish not to be treated like a common criminal.

That's a winning argument. I based my fundamental right argument on something the SCOTUS has already declared a fundamental right. It goes ability to travel nationally - travel internationally - air travel which makes international travel doable unlike any other method (there is no suitable alternative). The Court won't want to make any new fundamental rights so you've got to subtly build off another. You could make an argument that business travel is linked to the ability to travel, but it's a lot further than just stating national travel is fundamental shouldn't international travel be too?

If you just go from a business necessity you will be asked whether you think the Supreme Court should make face-to-face business meetings a fundamental right. It won't. Like I said above, it doesn't want to do that. And, unlike international travel which almost requires air travel to be viable, a business meeting can be done a number of different ways (there are suitable alternatives). If you don't get airline travel as a fundamental right then personal choice won't matter. You've got to get international travel first then airline travel as necessary to that right to make things work.

The problem is, it doesn't violate the constitution. I'll give a brief rundown of some of the problems of challenging the constitutionality of TSA. I'm breaking my rule of no more than 1/10th of an hour (6 minutes is a standard billing unit), but I'm only saying it once. I will not respond to any post even good questions since every time I say what the state of the law is people act like I am personally responsible for the American legal system. They think I and the law are one in the same. We aren't.

I will cover three major issues. Consent doctrine, improper method, and fundamental right.

Consent:

You have consented to be searched including a pat down. You have waived your 4th Amendment rights in this specific situation, specific time, and specific manner. Consent must be given voluntarily, knowingly, and intelligently. Voluntarily means you bought your ticket of your own free will, or in other words, you voluntarily put yourself in the position to be searched. Private actors, your employer, don't have to meet this standard because they don't have to follow the 4th Amendment. Knowingly and intelligently just means you recognize that you may be searched and know what the search may entail. These are all the disclaimers that you click check boxes for or sign off on. It must be noted that an argument that you didn't realize just how invasive it would be is a improper method argument not consent.

Your main problem with attacking consent is that you cannot attack it in a vacuum. That is, attack consent in relation to TSA and you attack all consent laws based upon the voluntary, knowingly, and intelligently standard. There is no TSA specific consent doctrine. You have two ways to do this. First, attack the consent doctrine itself. Basically, make an argument that constitutional rights cannot be waived. Say that even if done voluntarily, knowingly, and intelligently rights cannot be waived. This argument has no chance. However, if it sounds good then contact your representative to pass an amendment. At first blush it sounds good, but I'd like to know more about the overall ramifications before pushing it.

Your second line of attack is arguing that purchasing a ticket and arriving at the airport does not meet the proper standard. Better than the first option, but still a tough row to hoe. The voluntarily, knowingly, and intelligently standard is objective. That means the court looks at affirmative steps that constitute consent. Knowing you may be searched you search for a ticket, buy a ticket, register an account, input credit card information, click check boxes affirming you know about the possibility of search, you ultimately buy your ticket, arrive at the airport, check in with the airlines, and then head to the security check point. These are all affirmative steps. At any point you could have revoked. Compare with a Miranda waiver. Police put a piece of paper in front of you, you read it, then sign. You must differentiate the affirmative steps for the Miranda waiver with buying a ticket. I don't see how this can be done. There is much more pressure to comply in front of police than in front of your computer.

Bottom line, separating consent doctrine as it applies to TSA from other law enforcement or government agencies is almost impossible, and invalidating global consent doctrine is a non-starter.

However, just because you have consented to a search does not mean it can be performed in any manner. It must be done in a proper method.

Improper method:

This issue relates to the claims that TSA searches are "groping," "sexual molestation," or any other criminal charge. First, TSA agents do not have government immunity from these charges. Since they are outside the framework of their job they cannot be immunized. Second, proper TSA pat downs are not criminal acts. TSA pat downs are modeled after other government agency or law enforcement pat downs (the AIT and backscatter machines follow similar issues. Though the backscatter, if proven harmful, would be moved to its own issue separate from the other searches). Specifically, the standard pat down is similar to what parole officers administer to juvenile offenders, and the resolution pat down is similar to a police pat down. That means, again, you have two methods of attack. First, claim all pat down searches are criminal. Second, that TSA pat downs are different from all other agency or law enforcement searches.

Your first type of argument would fail just like the global consent argument. You're attacking too big a piece of criminal law. If police can't pat a suspect down then what can they do? A quick side note, police need either consent, reasonable suspicion (certain cases only), or probable cause to search. As stated above, TSA searches fall under consent. I don't see any way a court would make police searches illegal.

Your second type of argument is better but still flat. TSA searches aren't new. They are based upon other agency and law enforcement searches. You would have to differentiate other agency and law enforcement searches from TSA searches. Those claiming TSA searches to be molestation or any other criminal charge that would be your difference. Basically, you would say police searches are OK because the standard procedure does not molest the suspect. TSA searches are improper because the TSA standard procedure is molestation. This claim is irrespective to individual and is a global claim. As stated above, individuals that do improper pat downs, outside of TSA procedures, are ripe for criminal charges. But getting an individual wouldn't invalidate TSA unless you can prove that the person's actions were in line with TSA procedures. Further, even if you win on this count it just means the agency can adjust its procedures. However, a scandal like this and TSA would just be eliminated.

Improper method is probably a better argument then consent, but you still have a problem with the parallels with other agency and law enforcement. Are TSA searches really that different from other searches? From what I gather from law enforcement friends they aren't. If I were suing TSA I would definitely look into this. I'd get the official operation procedures but then research actual procedures. The standard de jure vs. de facto implementation. I don't have to prove that the regulations specifically violate improper method; I just have to prove that the official implementation does. You still have the sticking point of showing that even if the de facto implementation violates it's still different than de facto implementation that has been held constitutional on the law enforcement side. Again, you aren't attacking TSA alone.

Fundamental right:

Flying is not a fundamental right. Your ability to travel is a fundamental right as stated in Heart of Atlanta Motel. But that case didn't hold that your preferred or more efficient method of travel was a fundamental right. I would attack here. Justice Scalia in the thermal imaging case (holding police use of thermal imaging cameras to find pot growers an illegal search) put dicta in basically saying he would adjust the law as technology improves. In that case he said if thermal imaging became ubiquitous it may no longer be an illegal search. That would be my parallel. That is, airline travel in the last few decades has become ubiquitous in a increasingly global world. US Citizens no longer are satisfied to stay in the US. The fundamental right to the ability to travel must include the ability to travel outside of the US. Couple that with increasingly limited vacation time resulting in really no way to travel by car then boat to participate in such international travel then air travel must be fundamental. Because air travel is fundamental then TSA searches must pass strict scrutiny and be the least invasive and least discriminatory alternative. That is, TSA can only implement procedures that are absolutely necessary to achieve their goal. Most of TSA wouldn't meet this standard. Almost nothing ever does. The Korematsu (WWII concentration camps) did, but that's because the court deferred to the military. That case wouldn't pass today.

The problem with this is 1) differentiating air travel with all other modes of travel and 2) all the other laws and regulations implicated by this decision. First, you'd have a hard time getting all modes of travel to be fundamental. Every law regulating or licensing would immediately come under fire. And meeting strict scrutiny is hard. It would cause chaos in transportation law. Second, other laws implicated like passports, customs, and other rules would have to sustain a strict scrutiny attack. I think 1 actually wouldn't be too hard. In today's world air travel really is the de facto option for some destinations. I wouldn't have people that want to fly from LA to Las Vegas as plaintiffs, but I would if they refused to go to Australia or Africa because of TSA and an impracticability to drive then boat. The argument isn't that air travel is more efficient, the court won't care, but that air travel is the only de facto option to get there. I think the government would push number 2 really hard, but I doubt the court would care too much about that.

The fundamental right is probably your best bet, and it would change TSA over night. Pat downs would be gone and all that would be left would be x-ray scanners, document checkers, then the AIT for passengers that continually set off the scanners. Everyone else just goes through. I doubt they would even allow random screening.

I've whittled things down to basics, but that's what your facing. You cannot challenge TSAs constitutionality without facing a lot of other areas. You can't attack in a bubble unless you can differentiate TSA from other agencies and law enforcement. So you're going after global consent doctrine not just consent to TSA. You are attacking the method of pat down searches of all government agencies and law enforcement not just TSA.

I know, people will attack me as being a "dictatorship apologist" and being a yah! rah! TSA fan, but I'm not. I want TSA to go away too, but I can't go into court and yell it's unconstitutional because I say so or because slashdot says so. You can't ignore Supreme Court precedent just because you don't like it or don't know about it. Ever since Marbury v. Madison was decided the Supreme Court has been the arbiter of constitutionality. In the court system you have to work within their framework just like this appellate court did. What you need to realize is that claiming TSA is unconstitutional is not as easy as saying "read the Fourth Amendment." You must consider Supreme Court interpretation as well.

I do agree on this. I shouldn't make it sound like I believe America will stand by law no matter what. We don't. But I would point out in your examples that the people they were protecting were rich corporations and the highest echelon of the executive branch. I doubt a TSA agent would get the same (in my opinion) illegal protections. On one hand it's good. No one is above the law and the agent should be hit for improper searches. But it's also a sad example of how our system treats people differently.

Well, I disagree with your assessment. There is no way a court would throw a clear case of sexual molestation out because it's an administrative search. An admin search lowers the evidence bar but doesn't change the conduct allowed. A gas inspector can't come to your home, claim to want to look for gas leaks, then rummage around for illegal things. You have two different issues here. First, was the search constitutional, and second, was it properly performed. A judge wouldn't throw out a case just because it was a constitutional search even though improperly performed. Properly issued police warrants can be thrown out because the warrant was improperly performed. For example, looking in kitchen drawers when the warrant is for a person. Continuing a search after the warrant's purpose has been completed.

TSA is shielded by the law just like everyone else. If you can't make out all elements for your cause of action you won't win no matter who the defendant is.

They aren't unconstitutional because you consent. In other words, you waive your fourth amendment rights for this specific instance at this specific time. You can decline to waive but then can't get on the plane. The ability to travel is a fundamental right but the right to travel by air is not. These are not my personal statements but that of the US Supreme Court since the 1970s.

You can say it violates your fourth amendment rights but the SCOTUS says it doesn't. The only way you have a chance to get the Supreme Court to hold this as a fourth amendment violation is to convince them that air travel is a fundamental right therefore it gets strict scrutiny analysis which TSA probably wouldn't meet. Until then it gets rational basis which it does meet.

If a TSA agent sticks a finger in your girlfriends vagina press charges. That is not a proper pat down and is sexual molestation. And I'm guessing that story is false (or an extreme example) considering only women can do female pat downs. If a male was doing the pat down SOP has been breached making it an improper pat down no matter what happens.

A court wouldn't throw out a case on summary judgment if there really was sufficient legal evidence of groping. People are claiming that *all* pat downs are sexual molestation. My point was that if you bring a lawsuit claiming sexual molestation but can't prove all the elements required you will likely lose at summary judgment. A proper pat down does not meet the required elements. It's like the Republicans claiming voter fraud by ACORN. Except no one actually voted on the fraudulent registrations. One element of voter fraud is someone actually has to vote or make an attempt (I won't get into what constitutes an "attempt") to vote based upon that fraudulent registration. No vote no voter fraud.

I can only tell you what the law says when SOPs are followed. If you change the facts the analysis changes as well. Bottom line is the Supreme Court says you consent. The Supreme Court also says that pat downs are presumed to be legal. The plaintiff/prosecutor must prove that it was not. And this isn't a special case for TSA. The prosecution has the burden of going forward in all cases.

True, but I didn't say I thought it was morally or ethically correct. I just stated that the law does not consider TSA pat downs to be sexual molestation in all cases which was the poster's implication.

There are two major areas of response. First, TSA cannot legally do this. Second, TSA should not do this. The former is incorrect and is immaterial of how you or I think of the law. The latter is a personal opinion.

Actually, you are boiling it down to what I personally think. I told you what the current state of law is. So my argument boils down to "it's legal so it's legal." The person I responded to compared TSA actions to a clearly illegal action. TSA actions are not clearly illegal.

Your slavery analogy just further conflates something being legal with it being OK. Being legal is objective while being OK is subjective. The law is the law. If you think it should be changed doesn't make the law different.