Full Body Scans, the TSA and the Law: The Legal Maneuvers Continue

Full Body Scans, the TSA and the Law: The Legal Maneuvers Continue

I used to travel a lot — basically once a week.  I had a job in California, but my family lives in Austin.  (it was 2008–I took whatever I could find.)  So I spent a lot of time in airports, eating, pulling luggage, searching for power outlets, unlacing and relacing my shoes, and getting scanned.

Over that period, airports were transitioning from X-Ray-only to those “strip you naked” full-body scanners.  To say that I am dubious about these devices, their use, the lack of privacy, and so on would be a massive understatement.  The makers of the most popular machines have very cozy relationships with the various congressmen and government officials who approved their use by the TSA; there are no longitudinal studies as to whether these devices are or are not harmful to your health; there have been many instances where, in spite of the “rules”, the images generated by these devices have been stored rather than erased; there has yet to be a legal decision as to whether these machines constitute “unreasonable search and seizure” when used against a citizen whose only crime is to buy an airplane ticket; and on and on.

No, I’m not a big fan.

In  fact, I’m such a non-big-fan that I “opt out” every time I am asked to use them.  That this leads to being groped by a total stranger doesn’t make me happy, no, but it makes me less unhappy than subjecting my precious skin to those machines.  (I once offered to strip naked and allow myself to be searched that way rather than submit to that humiliating pat-down–in privacy, of course!–and was refused!  The TSA worker absolutely refused to recognize the fact that strip-searching me was actually more thorough than a pat-down.  “I can’t do that,” he said. “No, you won’t do that; you absolutely can,” I responded, making zero friends among the TSA staff.)

So I’m quite glad to see that someone is finally taking this whole issue to court:

The Transportation Security Administration (TSA) should be compelled to at last give the public an opportunity to comment on the agency’s use of full-body scanners in airports, a new brief of amici curiae by the Competitive Enterprise Institute (CEI) urges. For more than three years, TSA’s use of body-scanners has affected millions of Americans, yet passengers still have had no opportunity to formally voice their concerns to the agency.

The TSA has already been directed by the D.C. Circuit in EPIC v. DHS last July to “promptly” begin a legally required notice-and-comment rulemaking on the use of these scanners. CEI’s brief is in support of a petition for writ of mandamus filed on July 17 in the D.C. Circuit Court of Appeals by the Electronic Privacy Information Center (EPIC), which aims to compel the TSA to begin the court-ordered rulemaking proceeding within 60 days.

CEI is joined by Robert L. Crandall, former Chairman and CEO of AMR and American Airlines, the National Association of Airline PassengersAmericans for Tax Reform’s Digital Liberty,Electronic Frontier FoundationThe Rutherford InstituteCenter for Individual FreedomCyber Privacy ProjectCenter for Financial Privacy and Human Rights, and the Liberty Coalition.

“All we are asking is that the TSA follow the law. They failed to initiate a notice-and-comment rulemaking proceeding as required under the Administrative Procedure Act, and they are now failing to comply with a court order telling them to do just that. The TSA is out of control, and we believe the court will recognize this and grant EPIC’s petition,” said CEI Transportation Policy Analyst Marc Scribner, who will be discussing the filing this afternoon at a Capitol Hill briefing sponsored by the Cato Institute.

The brief urges the court to set a timetable for the TSA to open public rulemaking so that the public can bring important concerns and facts to agency’s attention. If the TSA cannot then justify the use of body-scanners to the public, then further court supervision could be required.

  • View the Cato Institute’s Capitol Hill briefing information

As you can tell, I am appalled at how much our basic civil rights have been abrogated since 9/11–and quite frankly, Obama is no better than Bush in that regard.  But I’m just one guy, and I went to U.C. Santa Cruz (Go Slugs!), so to say that I’m left of center is an understatement.  So share what you think below!  And if you’re in agreement with me, hey, surf on over and sign the petition.

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3 Comments on "Full Body Scans, the TSA and the Law: The Legal Maneuvers Continue"

  1. I don’t travel that often by plane, usually only once or twice a year. But, I will not let them use the body scanner on me. Thus far, it hasn’t come up, but if it does, it will be the manual search for me. My wife on the other hand, is a compulsive rule follower (she always shows her receipt at the doors to exit while shopping, never enters through the exit door, that kind of thing…) and will do whatever she is told. I suspect there are more people like her than like me. I’m the one getting chased out of a WalMart by an octogenarian demanding that I show my receipt, which I refuse to do anywhere but Costco. I always resent having to prove that I’m not a thief on my way out the door, so I just won’t do it.

    So, no body scanning for me…if that means groping is involved then so be it. But, I’ll also set my phone to record on my way as well, to make sure that my rights aren’t being violated either. I’m always polite to the TSA (to date anyway…LOL!) and have had my bags of gear opened nearly every time I travel, since there is so much in there they can’t get a clear picture until they take about half of my stuff out. But, I can totally see myself attempting to win a “war of words” with statements like “You “CAN” but “WON’T” for sure!

    • At SFO in the Southwest terminal, the TSA setup is such that two conveyor lines go through the same x-ray machine. Just past the machine is the “isolation booth”, where TSA agents take people for wanding. After putting my stuff on the left-hand conveyor, I went through the machine, and the TSA agent told me to go around the booth *on the right*, so that I would have to go all the way around the isolation booth and back up against the “flow” of other people getting their own stuff off the left-hand conveyor–while pushing past people getting their stuff from the *left*-hand conveyor in the process–to get my stuff. The alternative was to take two steps down the lane past the TSA agent. Naturally I asked, “Why?” His response? “Because I said so, that’s why!”

      Yup, that sure explains it. Makes perfect sense. Oy.

    • I have only encountered the full body scanner once, but I have to say nothing was more…thorough than the human patdown we had in Panama. The agent there finished patting me down and I turned to my wife and said the next time someone did that to me I wanted drinks first and a cigarette afterwards!

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