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

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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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