Deeply flawed DHS/TSA public commenting process

One way that American citizens get to comment on policies that affect us is to go to something called the Federal Register. You read through it to see if there’s a proposed rule you want to comment on, and then comment on it. Sounds easy, right?

But how do you find out about a rulemaking where public comments are being accepted? First you have to know the Federal Register even exists. Then you have to search it using keywords. Depending on your search, you may or may not find what you’re looking for. You can also track civil liberties organizations and note when they post notices about proposed rules on their websites or on social media sites. Either way, for the average person this is a time-consuming, burdensome, and opaque process to navigate.

Couple this process with a recalcitrant government agency and what happens? Well, here’s what happened with DHS/TSA right after the nude body scanner roll-out in 2010.

The Electronic Privacy Information Center (EPIC) filed suit against DHS/TSA arguing that they should have had a formal rule-making about the use of the scanners so that the public could comment. In other words, the TSA should have solicited public input before implementing the scanners. The Court agreed with EPIC and ordered the agency to post a formal rule-making notice in the Federal Register and accept public comment. The complete lawsuit and other documents are here.

The TSA dragged their feet about complying with the Court’s order. Since the scanners were new, and passenger resistance was high, they likely feared a huge number of people would comment negatively about the scanners and so-called pat-downs. Slowing down the process gave the TSA time to habituate people to the scanners. EPIC had to file motions — twice — to get DHS/TSA to initiate the rule-making. Finally, at the end of March last year — almost two years after the court order — notice that the public could comment appeared in the Federal Register.

During that 90-day comment period, the Federal Register website went down numerous times for maintenance. Other problems cropped up as well. Sometimes the page wouldn’t load. Errors caused comments to not be accepted. Comment counts didn’t always upload. And the TSA Blog, the agency’s mouthpiece to the world, hid the fact that the public comment period was open.

The troubles with the website were almost certainly not done on purpose, but government ineptitude is just as bad. People who aren’t familiar with sites like the Federal Register just gave up, meaning many people were shut out of the process. Still, despite the obstacles, the TSA received over 5,000 public comments  (the vast majority opposing TSA practices), an extraordinary number in the scheme of things, given that most Federal Register proposed rules receive only a handful.

As of today, October 26, 2013, four months and all those comments later, no one has heard a peep out of DHS/TSA about what a proposed rule on scanner use would look like. Will we see a proposed rule anytime soon? That’s anyone’s guess.

Meanwhile, the scanners continue to be used, despite thousands of publicly recorded objections and despite the fact that they’ve been proven, time and again, to be ineffective and easily fooled.

Furthermore, several new proposals were posted in the Federal Register in September 2013, all open for public comments. All were about the TSA’s desire to gather more personal information on people.

The agency wants more Privacy Act exemptions so that they can use Secure Flight passenger data for Pre-Check purposes and share that information far and wide. One filing received 5 comments, one got 48, and another got 12. Lack of awareness of the filings contributed to the poor showing of comments, as well as a very short comment period — only 30 days.

To fully appreciate the ramifications of the Federal Register filings, read travel writer Edward Hasbrouck’s write-up, found here. EPIC’s comments are here.

I fully expect DHS/TSA to state that they got little opposition to their proposed rules, and hence the public must feel fine with their procedures. DHS/TSA have stated that the rules they proposed in September will go into effect right after the close of the 30-day commenting period — no matter what concerns the public have.

In the meantime, the fact that the TSA is still hated about as much as the IRS is ignored; the existence of the Federal Register doesn’t get any more publicized; its entries, written by bureaucrats, don’t become better written; and it doesn’t become any easier for a person to post a comment. But until something else better comes along, this is what we have, so we have to make do.

It’s long past time to move on to a process that is user-friendly and transparent — particularly when important rights are at stake.