TSA finally holding long-overdue public comment period on scanners

by Lisa Simeone on March 25, 2013

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)

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