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.

  • Bonnie Jean Rudolph

    Let’s face it we have these jumped up thugs doing an illegal search and seizure and Hurting Ill,disabled, elderly , and children- citizens of the US being molested . disrobed.and humiliated and if you complain
    about it you may be detained ,arrested, and given some retaliation at a future date- Or not be allowed to fly. I really don’t feel safe from thugs like this. I have been abused many times by them , and I am sick of it!
    Only my physician should examine me since I have no criminal record,
    I should not be subject to these people due to my artificial knees and

    surgery scars. So much for the 63 yr. old law abiding citizen.The abusers are waiting!!!

  • Fisher1949

    This is just like the rubber stamp TSA passenger rights advisory board stacked with industry reps and TSA apologists. It was a blatant ruse to claim that they considered passenger’s rights but didn’t include even one legitimate passenger representative.

    In the past three years TSA has demonstrated utter contempt for passengers as have the airlines who benefit the cost of security that they get to pocket.

  • mumtothree

    I, too, have implanted medical devices, and also had a brace on my knee when I last flew. The TSA paperwork checker said that I had qualified for expedited screening. (Thanks to this blog, I now know what that is.) Go through this machine, not the other one. I also explained, as I always have to, that I have implanted medical devices, AND showed the TSA’s own medical condition card. (Check it out on their website!) “What’s this?” they asked me. Good for nothing, apparently, as TSA employees don’t have a clue. So my so-called expedited screening consisted of setting off the alarms, and being asked to remove the brace, from underneath my clothes. I declined. I also have implanted metal, and if asked I would have also declined on-the-spot surgery so that it could be examined. That’s why I disclosed it, people! Not that my surgeries are anyone’s business. So I was subjected to an extensive pat down, including the sides of my breasts, and lifting up my shirt to expose the waistband of my pants. Good thing I had plenty of time before my flight. If this is the EXPEDITED screening, I’d hate to have to go through the ordinary screening.

    • AND showed the TSA’s own medical condition card. (Check it out on their website!) “What’s this?” they asked me. Good for nothing, apparently, as TSA employees don’t have a clue.

      Yep. Par for the course. The Master List of TSA Crimes and Abuses (tab at top of every page) has oodles of accounts like this.

    • Annapolis2

      I am so sorry to hear that you were assaulted by the violent blueshirt thugs in our airports. I know that you do not deserve to be treated this way. Not one innocent traveler ever deserves to be treated this way. Hey TSA, we are not suspects!

  • davidgilmore

    I may not always have a comment to post…but I’m reading.

  • Annapolis2

    Of course the commenting process is broken. It isn’t in the TSA’s interest to listen to public outrage. It isn’t in the government’s interest to grant meaningful ways for the public to shape policy. They want to shut us out. The TSA will continue to sexually assault innocent people because they get paid for it. Resistance, personal, in-your-face resistance is the only answer. I’m writing this on my way to the rally in DC. We won’t quit.

  • Susan Richart

    First, I’d totally forgot that the TSA blog had removed its thread on the public comment period. Thanks, Deborah, for reminding me of that.

    It’s my belief that the public comments to the NBS proposed rule were so overwhelmingly negative, that the TSA had to find some way to save face in order to decrease or eliminate their use and, therefore, came up with the idea of extending PreCheck to the general population.

    Hence, the notices of rule making pertaining to increased invasions of privacy. (I only knew about one of them, otherwise I would have commented on all three.)

    What I find astonishing – why I should think it is astonishing, knowing DHS/TSA? – is that the public reaction to the NSA disclosures was totally overlooked when proposing these rules. A large percentage of the population believes the NSA has gone too far; younger Americans believe that Snowden is a hero; . These are the people who will be most impacted by TSA’s proposed invasions of privacy.

    The reaction to the NY Times article regarding the data the TSA will be searching was overwhelmingly negative.

    DHS/TSA obviously have their heads up their butts, but what else is new? They will plunge ahead unless EPIC is able to stop them.

    I wish the revolution of the masses would start soon. This country needs it.

    • Daisiemae

      The federal government has us on a choke chain. Resistance only seems to tighten the noose.

      • Susan Richart

        Although it’s pie in the sky, economic resistance, i.e., cessation of air travel, would at least loosen the TSA’s hold.

        • Daisiemae

          They haven’t gotten a penny from me since they brought out the nude body scanners. And they never will.

      • They may have a chokehold, but resistance is never futile. More than that, it’s necessary.

    • TestJeff Pierce

      Of course you are right. I just want to point out that PRE-CHECK is EXACTLY the post-911 security from 2001 to 2003. I think leaving laptops in bags may even be pre-911.

      Either way, the GeTSApo continues to violate our privacy EVEN WORSE than the NSA; primarily, they now run EVERY PASSENGER through databases – many of these same databases federal, state, and local law enforcement cannot peruse without reasonable suspicion.

      • Bonnie Jean Rudolph

        And because these databases are available our ID is readily established- using facial recognition tech etc.
        makes it unnecessary to abuse and violate us-muscle us around and disrobe us-if we have a medical condition.I am sick of it. I am sure they wish I was mute,
        however, that is not one of my conditions.

    • RonBonner

      Wonder if this sudden expansion of Pre Check to almost anyone might be a covert response by TSA to the Strip Search Machine NPRM?

      • Wonder if this sudden expansion of Pre Check to almost anyone might be a covert response by TSA to the Strip Search Machine NPRM?

        Bingo! That’s exactly what I think it is, and Susan says that in her comment. (NPRM, for readers unfamiliar with the acronym, stands for “Notice of Proposed Rulemaking” — basically, the announcement in the Federal Register telling people they can comment on a proposed rule the govt wants to make on a particular practice, such as use of the strip-search scanners.)