TSA finally holding long-overdue public comment period on scanners

BBC Scanners
*UPDATED BELOW*  A full five years after the TSA began installing airport scanners and forcing people through them, and almost two years after it was ordered by Congress and the courts to hold a public comment period on them, the agency is finally complying.

Never mind that logic and common sense dictate that an agency would take public comments before implementing a new, invasive procedure.

Until now, the TSA has defied not only Congress, but also the courts, by not holding a public comment period on the scanners. The first court order was handed down on July 15, 2011. The TSA ignored it.

Then, over a year later, the court handed down another order: open the public comment period by the end of March 2013.

So the TSA has waited till now to announce that it will comply.

Here is the notice in the Federal Register.

And here is the PDF itself (which you don’t have to download; it’s visible on-line) announcing what’s called the NPRM — “notice of proposed rulemaking.” Here’s the summary:

The Transportation Security Administration (TSA) is proposing to revise its civil aviation security regulations to clarify that TSA may use advanced imaging technology (AIT) to screen individuals at security screening checkpoints. This proposed rule is issued to comply with a decision of the U.S. Court of Appeals for the District of Columbia Circuit, which ordered TSA to engage in notice-and-comment rulemaking on the use of AIT for screening. The Court decided that TSA should provide notice and invite comments on the use of AIT technology for primary screening.

There then follow detailed instructions on how to submit comments. You can do it electronically, by mail, by fax, or in person. There’s no indication that you are limited in how many comments you may make or how long your comments may be. You can comment about the scanners, about the pat-downs, about your experience, about the 4th Amendment, about your opinion on anything to do with the TSA’s procedures. And I would urge you to do so.

The PDF is over 50 pages long. Because after the summary and instructions on how to comment, there’s a whole raft of stuff you’ve read countless times before: the TSA’s claims about the efficacy of the scanners, the claims that the scanners have been tested for safety, that they’re necessary in an age of “emerging threats,” blah blah blah.

But since we at TSA News believe in empirical evidence and not propaganda, we can, as we’ve already done so many times, point to the fallacies in these claims.

So again, a few facts:

The two types of scanners — backscatter (x-ray), which emit radiation, and millimeter wave (MMW) — have not been independently tested for safety. The TSA continues to claim that the National Institute of Standards and Technology (NIST) tested the scanners and affirmed their safety. This is a lie. The TSA continues to claim that the Johns Hopkins Applied Physics Laboratory deemed the scanners safe. This is also a lie.

In a FOIA lawsuit against the Department of Homeland Security, EPIC has just obtained documents concerning the radiation risks of TSA’s airport body scanner program. The documents include agency emails, radiation studies, memoranda of agreement concerning radiation testing programs, and results of some radiation tests. One document set reveals that even after TSA employees identified cancer clusters possibly linked to radiation exposure, the agency failed to issue employees dosimeters – safety devices that could assess the level of radiation exposure. Another document indicates that the DHS mischaracterized the findings of the National Institute of Standards and Technology, stating that NIST “affirmed the safety” of full body scanners. The documents obtained by EPIC reveal that NIST disputed that characterization and stated that the Institute did not, in fact, test the devices. Also, a Johns Hopkins University study revealed that radiation zones around body scanners could exceed the “General Public Dose Limit.” For more information, see EPIC: EPIC v. Department of Homeland Security – Full Body Scanner Radiation Risks and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Jun. 24, 2011)

If you’re going to comment about the backscatter scanners, keep this in mind: the TSA began removing the backscatter scanners from airports a few months ago. If you’re of a cynical bent (or just a logical one), you might conclude that the TSA started doing this so that radiation-emitting machines would be gone from airports by the time the public comment period rolled around.

I don’t know what the TSA will do with comments about the scanners, but I do know that they’ll be able to say, “Look — no more backscatter scanners!” So perhaps they’ll simply discount those comments that mention them.

Regardless, the millimeter-wave (MMW) scanners are still highly problematic. The UK won’t use them because they’re so unreliable. Even a TSA executive admitted that the scanners are ineffective. No, they don’t zap you with x-rays, but as Pro Publica has pointed out and as we’ve reported umpteen times, they have a 54% false-positive rate. They alarm on more than half the people who go through them. They alarm on pleats, on folder-over inseams, on sweat.

Therefore, the MMW scanners increase the need for a pat-down.

The pat-downs themselves are invasive and often abusive. They are often used as retaliation and punishment for passengers who don’t want to go through the scanners, as TSA agents themselves have admitted. Admitted repeatedly. Admitted as far back as August 2010:

However, when meeting with privacy officials at the Department of Homeland Security (DHS) and TSA later that month, I was told unofficially that there were two standards of pat-downs. One for the normal situation where passengers are going through metal detectors and a different pat-down for those who refuse to go through the whole-body scanners.

With this latest announcement, TSA admits that it has been clandestinely punishing passengers for refusing to go through the invasive whole-body scans with an even more intrusive aggressive pat-down and that soon those more invasive pat-down will creep from airport to airport.

The pat-downs and scanners both are a violation of your 4th Amendment right against unwarranted search and seizure.

With a walk-through metal detector (WTMD), one can reasonably argue that the search is limited: it’s limited to metal. With a scanner, your entire body is being searched. Ditto with a pat-down. The way the TSA is conducting pat-downs isn’t limited to a particular part of your body that might have “alarmed” on the MMW scanners — a pocket, say, or an earlobe. On the contrary, when the scanner alarms, you’re pulled aside for a search of your entire body.

Such a search is more invasive than necessary and therefore cannot be called an “administrative search.” An administrative search must be “no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives,” confined in good faith to that purpose” [United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)].

The TSA also claims that the MMW scanners have so-called privacy software — Automated Target Recognition (ATR). This is the the generic stick-figure or “Gumby” image that’s displayed on the screen at the checkpoint. The TSA claims that no images of your naked body are recorded or stored. But we’ve heard this before, only to find out that images can be recorded, stored, and leaked.

Bottom line: the scanners and pat-downs are ineffective, an invasion of privacy, a violation of the 4th Amendment, and should be illegal.

If you want more facts and empirical evidence, you can find both in abundance in the archives of this blog. In the meantime, I’ll direct you to a few posts: this one by mathematician Sommer Gentry, this one by Bill Fisher, this one by Wendy Thomson.

UPDATE: The NPRM is live. Click here to submit your comment.

UPDATE NO. 2: Public comments — view all.

(Photo courtesy of the BBC)

  • http://www.kizi-2.org/ Kizi 2

    Thank you for this post!

    http://www.jugarfriv.org

  • http://www.yepifriv.co/ yepifriv
  • http://www.facebook.com/people/Oline-Wright/772108468 Oline Wright

    I call for the head of the agency and all persons conducting such searches be brought up on charges of abuse of civil rights. especially the 4th amendment. I call for those TSOs doing the invasive pat downs to be charged with multiple counts of sexual assault. and the head of the agency to face charges of conspiracy to commit sexual assault. Those who have performed such pat downs on children should face charges of sexual assault on a minor and child abuse. Those who have done those pat downs on the elderly should face sexual assault charges with the aged and elder abuse.

  • Daisiemae

    I posted my comment. I posted it anonymously. I simply don’t want my name and other info on the internet.

  • Mavis Leland

    If we all boycott and refuse to fly for a couple of days, it probably would stop. Money talks. The less the government tries to finger us the better.

  • Susan Richart

    Thanks, Lisa, for the link. While I applaud all those who are commenting (and I am sure the final number of comments will end up being in the thousands, hopefully tens of thousands), I fear that unless thoughtful comments are offered, such as Lisa’s and Ancient Mariner’s, most of what I read this morning is garbage and won’t even be considered.

    It is more important than ever that we develop a template that others may use to submit their comments to DHS/TSA.

    Another suggestion: copy your legislators with your comments.

    • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

      Wow, I wouldn’t describe most of the comments as garbage. I was impressed with the passion and straightforwardness of them. Though of course a template is a good idea — though problematic, because too often people merely copy a template word for word, so you end up with a bunch of zombie comments — I think that people’s sincere opinions sincerely expressed are tremendously valuable. And that’s what I saw in the comments that have posted so far.

      • Susan Richart

        DHS/TSA isn’t interested in passionate statements. (For that matter, they aren’t interested in statements that presents facts, either, but that’s a whole other subject.)

        Comments such as “Mo (sic) to scanning. No to invasive pat-downs. In fact the entire organization should be disbanded” and others of that ilk, IME, actually do more harm to the cause than good as DHS/TSA will just write them off as “nut cases.” If the preponderance of comments are similar, then the entire process will be wasted.

        • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

          I don’t think that’s going to happen. I don’t think the preponderance of comments will be similar. It’s early days. We have 80-some more to go. Let’s wait and see.

    • Daisiemae

      While I agree that intelligent and informed comments are extremely important, I think passionate comments are important as well. In fact, it may be that politicians will be more swayed by the passionate, vehement hatred that Ameicans have for TSA than they will by reason, logic, and facts. After all, the ONLY thing politicians care about is being re-elected, so passionate vehemence may rule the day.

      • Susan Richart

        Are any politicans going to see these comments? I’d venture a guess that only a small fraction ever will. See my comment to Lisa below.

  • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone
  • http://twitter.com/AncientMarine12 Ancient Mariner

    Here’s my comment. So far there are only 56 of them, so please comment if you haven’t yet.
    By the way, I read through all of them and exactly zero supported use of
    the AITs. That’s a pretty good ratio.

    I strongly oppose this “proposed” rule which has been in effect since
    October of 2010. The use of electronic imaging of our persons and the
    punitive use of police-style friskings against those who opt out have no
    place in a free society.

    I am a million-mile flyer, and I originally supported the idea of federal screening of passengers because the government would have to abide by the Bill of Rights and specifically the Fourth Amendment to the Constitution. However, TSA has chosen to ignore our constitutional protections and seems intent on cowing the American public into accepting these clear violations of human rights and dignity.

    I have never, and will never, submit to AIT screening. Furthermore, every time I am punished for opting out, I will complain to TSA, to my congressman, to each of my senators, and to the White House. My request to my elected representatives is unequivocal: Withhold all funding for TSA until they start showing respect for the Constitution and the traveling public. This means:

    1. Remove and destroy all imaging machines that potentially can “see” under our clothing.
    2. End all invasive patdowns that involve touching genitalia unless there is probable cause to believe that the individual has committed a crime.
    3. Cease immediately harassment of people who assert their constitutional rights during airport screening.

    Until TSA complies with these modest and reasonable conditions, I
    will continue to oppose any funding for an agency that has exceeded
    their authority and denies the constitutional rights of the public they
    are supposed to serve.

    • http://www.facebook.com/profile.php?id=100002152481201 TestJeff Pierce

      Fantastic Comment!

  • jim6555

    I flew out of Providence (PVD) earlier this week. They now have backscatter machines in all five security lanes and were using them on every willing sheep. Each machine had a paper sign that said “backscatter” in large, bold letters. I opted for the pat down. The TSA agent was courteous and very lightly touched my genitals with the back of his hand.

    • Susan Richart

      Interesting. TSA is supposed to be getting rid of these machines.

      A question: could this have been backscatter using ATR, the new backscatter technology?

      • jim6555

        I have no knowledge about whether or not they are ATR. The paper sign affixed to the machine just said “backscatter”.

    • http://www.facebook.com/profile.php?id=100002152481201 TestJeff Pierce

      When your genitals are lightly touched by coercive methods, the perpetrator is arrested by the police….in all other circumstances.

  • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

    I just submitted my comment. Here it is, along with the notice that it went through. Keep in mind that links don’t go through; you can, however, upload whatever other files/docs you want. Also, there’s a character limit:

    The strip-search scanners and the gropes, euphemistically called “pat-downs,” should be illegal. They are ineffective, an invasion of privacy, and a violation of our 4th Amendment right against unwarranted search and seizure.

    With a walk-through metal detector (WTMD), one can reasonably argue that the search is limited: it’s limited to metal. With a scanner, your entire body is searched. Ditto with a pat-down. The way the TSA is conducting pat-downs isn’t limited to a particular part of your body that might have “alarmed” on the millimeter-wave (MMW) scanners — a pocket, say, or an earlobe. On the contrary, when the scanner alarms, you’re pulled aside for a search of your entire body.

    Such a search is more invasive than necessary and therefore cannot be called an “administrative search.” An administrative search must be ”no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives,” confined in good faith to that purpose” [United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)].

    The TSA claims that the MMW scanners have so-called privacy software — Automated Target Recognition (ATR), the generic stick-figure or “Gumby” image that’s displayed on the screen at the checkpoint. The TSA claims
    that no images of your naked body are recorded or stored. But we’ve heard this before, only to find out that images can be recorded, stored, and leaked, as 35,000 of them were in Florida a few years ago, from a courthouse that was using the scanners.

    As been abundantly reported by reputable sources such as Pro Publica, the MMW scanners have a 54% false positive rate. They falsely alarm on more than half the people who go through them. The EU won’t use them because they’re ineffective. In addition, NONE of the scanners — neither the radiation-emitting backscatters nor the MMWs — have been independently tested for safety.

    We have a right to go about the country without unwarranted search of our bodies and belongings.

    Your comment was submitted successfully!

    Thank you for submitting a comment on the following Proposed Rule:

    NPRM: Passenger Screening Using Advanced
    Imaging Technology (Federal Register Publication)
    Agency: TSA
    Document ID:
    TSA-2013-0004-0001
    Your Comment Tracking Number: 1jx-84fq-slol

    Note this tracking number to find your comment at a later date.

    When will my comment appear online?
    After submitting your comment, you will not be able to view your comment until the appropriate agency reviews and publishes it on Regulations.gov. Given certain regulations may have thousands of comments, processing may take several weeks before it is viewed online. To obtain further information, please follow-up with the agency contact listed in the document soliciting your input. To view this document click the link above.

    How do I find my comment in the future?
    The best way to find your comment in the future is to enter your Comment Tracking Number in the search field on the homepage. You can also search by keyword or submitter name.

    • Daisiemae

      Don’t be surprised if you are NEVER able to view your comment online or anywhere else.

      • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

        Daisimae, maybe. But at least we know there’s a written record. That’s why I’ve plastered it all over the internet and in addition have a copy of it as a Word doc.

      • Susan Richart

        “Given certain regulations may have thousands of comments, processing may take several weeks before it is viewed online.”

        IOW, the comment period will be over before comments are posted.

  • Susan Richart

    Sorry to be a nuisance. Where may one review the comments being made? I have read that no comments are up yet and that they are being moderated.

    I wouldn’t put it past the TSA to not put up comments that it feels are threatening to them by exposing their fallacies.

    • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

      All info at that same link, including how to read the comments, which will be in the public docket:

      http://www.regulations.gov/#!documentDetail;D=TSA-2013-0004-0001

      • Susan Richart

        Thanks, Lisa. I was looking on the comment page itself.

        Comments Received: 0*

        * The total reflects comments received from Regulations.gov and other means as of 11:59 PM yesterday. All comments received may not be posted at this time including bulk submissions; therefore, the total comments received and posted may differ.

    • Daisiemae

      That thought occurred to me immediately when I saw that the “appropriate agencies” will review the comments first and it may take several weeks.

      Don’t be surprised if many comments never make it to the post. TSA is determined to censor us right into slavery. I don’t believe they will let a landslide of negative comments see the light of day.

  • Susan Richart

    If you’re going to comment about the backscatter scanners, keep this in mind: the TSA began removing the backscatter scanners from airports a few months ago.”

    BEWARE The TSA has a $245 million contract with American Science and Engineering for backscatter with ATR!!!

    http://www.as-e.com/products-solutions/personnel-screening/checkpoint-lobby/product/smartcheck-ht#gallery

    http://ir.as-e.com/releasedetail.cfm?ReleaseID=712149

    “As part of this contract, AS&E received its first delivery order for three SmartCheck systems to be tested at TSA facilities.”

    Do we know if these machines have been delivered to the TSA and where they are being used?

  • http://www.yepi2.info/ yepi2

    thanks for post

  • frostysnowman

    Just wondering if there’s an advocacy group I can say I’m a part of in my post, along with any recommendation of what to focus my comments on. I was planning to write how these machines lead to pat downs (noting my personal experiences with them) and how I believe both violate my 4th amendment rights. I really want my comments to count as much as possible.

    • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

      You could join FTTUSA — see the rest of the comments in this thread. And configure your comment however you like. There are many recommendations in this post and in the comments.

  • Susan Richart

    This should be required reading before submitting comments. Lots of good ideas here:

    http://fttusa.org/images/11-30-2012_FINAL_ACCEPTED_Amicus_Brief_of_Freedom_to_Travel_USA_in_Redfern_v._Napolitano.pdf

    • http://tsanewsblog.com/214/news/history-repeats-itself-with-tsas-strip-search-tactics/ Lisa Simeone

      Yes, Wendy Thomson, who writes for us, is one of the founders of FTTUSA. Jeff Pierce (see earlier comments) is also a member. And FTTUSA has filed an amicus brief to go along with this lawsuit, and her group has been invited to make an oral argument before the court, an extraordinary achievement and one deserving of a post of its own here (coming soon).

      See Wendy’s latest post, where she talks about the lawsuit:
      A Fourth Amendment legal challenge to the TSA scanners
      by WENDY THOMSON on MARCH 7, 2013
      http://tsanewsblog.com/9712/news/a-fourth-amendment-legal-challenge-to-the-tsa-scanners/

  • http://twitter.com/AncientMarine12 Ancient Mariner

    I just submitted my comment to the Federal Register. If you are reading this blog, please take a few minutes and submit yours as well.

    Go here to read:

    http://www.regulations.gov/#!documentDetail;D=TSA-2013-0004-0001

    Click on the “Comment Now” button on the upper right to type and submit your comment.

    Thanks.

    • http://www.facebook.com/profile.php?id=100002152481201 TestJeff Pierce

      Thanks for getting a jump on it. I expect many different organizations will look to get several thousand comments into the record. Stay tuned…..

  • http://www.facebook.com/profile.php?id=100000025282812 Dee Jaye

    GET RID OF THEM!!! END THE ENHANCED SECURITY PROCEDURES NOW!

  • http://www.facebook.com/profile.php?id=100002152481201 TestJeff Pierce

    COMMENTS
    1) The US vs DAVIS decision was only made when current technology was metal detectors. The scanners have not been legally vetted. I reject US vs DAVIS on some of the pieces the TSA uses to justify their actions.
    The same US vs DAVIS says that using administrative searches to find criminal evidence – as a main purpose – would lead to nuetering the 4th amendment protections and if that happened then evidence obtained by searches would not be admissible. The TSA VIOLATES this as we know they boast about finding things that lead to criminal law violations.
    We know they had “Mexicutioners” at Newark Airport who had quotas to find suspicious people – and basically singled out Hispanic-looking/sounding people to find illegal immigrants.
    US vs DAVIS said airport searches are valid as long as someone can refuse to be searched. Since someone may decline a search, the search has met its primary purpose of deterrence.
    The gray area is that it is untested in court WHEN someone in a security line has consented to a search. My opinion is one can decline a scanner search and walk away (which they won’t let you do). In other words, stand in line and consent to a Metal Detector…but if you can’t get that kind of search…then walk away.
    2) The courts have ruled that the government does not have to use the “least invasive” method for searches. We lost that protection over the last couple of decades.
    3) IMPORTANT TO REITERATE: Metal detectors test for the presence of metal without searching every inch of your body. Likewise, same for Explosives Threat Detections (ETD).
    Scanners identify…..NOTHING. They either show a nude picture (non-ATR) for someone to look at or they use software to identify “anomalies”. The ATR software cannot identify the anomaly – is it a gun, bomb, wallet, or mastectomy scar?
    The scanners are simply an unwarranted search of your person – every inch of your person – to try and find a cause for further reasonable suspicion examination. It completely violates the 4th amendment.
    Technically, what if we had a technology that could identify everything you carry in your clothes using advanced physics which did not require a picture? The government could then technically perform a search of your person at anytime….it would still violate the 4th amendment. Why not use this on people walking in the streets (where there are real measurable threats, unlike at airports….)? That is the biggest issue…..regardless of technology, the constitutional principles are still valid.
    Scanners of sufficient technology may one day be able to instantly search you and actually (unlike today) identify what you are carrying, wherever you are. If the government can use scanners in airports to fight a threat which has not happened for 5 decades on US flights, then there is no level of risk sufficiently small to keep the 4th amendment alive.

  • http://www.facebook.com/ron.bonner.10 Ron Bonner

    These things are not “airport scanners”!

    They are Whole Body Imagers.

    Electronic Strip Search Machines.