If you’ve waited in an airport security line, you know that the TSA is not what anyone would consider “prompt.” Still, even the longest airport delay is shorter than the amount of time it’s taking the TSA to respond to a court order that it demonstrate it even needs the things holding up the line in the first place: the advanced imaging technology (AIT), a.k.a. strip-search, scanners.
July 15th marked one year since that court order. And the TSA still hasn’t complied.
No one knows if a broad 4th Amendment challenge to the use of full-body scanners is going to succeed. According to the Lawfare Blog, the success of such a challenge is unlikely. Courts have generally allowed for screening of air passengers. But a government agency advancing a new program must demonstrate that its decision to begin that program is consistent with existing law and grounded in reason, and it must take public comments. In the case of the scanners, the TSA has done none of these things.
When the TSA first installed the scanners, the agency argued that it was simply modifying procedures, and not making substantial changes, which would require public input according to the Administrative Procedures Act (APA). But while a DC circuit appeals court denied the Electronic Privacy Information Center’s (EPIC) challenge of AIT scanners last year, it also required that the TSA justify its use of the scanners, roundly rejecting the agency’s arguments:
Despite the precautions taken by the TSA, it is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not. Therefore, regardless whether this is a “new substantive burden,” … the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking.
Later in the argument, the court goes as far as to call the TSA’s rationale “absurd”:
In sum, the TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, and the rule is, as we explain below, otherwise lawful, we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.
This is certainly a bit of a technicality: the court basically told the TSA, “We’re fine with the use of these scanners, as long as you go through the proper channels to justify their use (which you should have done before you installed them, but since not using them would be disruptive, we’ll allow their use).”
This decision was handed down on July 15. 2011. The TSA was asked to act promptly a year ago. And it’s done nothing.
EPIC has filed several motions to compel the TSA to fulfill its duties under the APA. The first two motions, filed last year, were dismissed. But the most recent writ of mandamus (an order issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly) goes to lengths to point out that the TSA has not been prompt in addressing this concern. The Lawfare Blog post points out that if the TSA just bit the bullet and held the appropriate forum for public input, it would probably be successful. The definition of “prompt” is not defined, but a court recently ruled that a 20-month delay is certainly not prompt; and we’re now creeping up on that.
We’ll have to wait and see what happens with this case. Public hearings on this technology would certainly be interesting. Perhaps there’s a reason that the TSA doesn’t want the details of the program coming to light. I doubt it’s a question of cost; I can’t imagine that holding a public comment period and publishing the results costs much more than a single naked scanning machine (each of which goes for a cool $170,000). Maybe the TSA is just lazy—a word more likely to describe the agency than “prompt.”
Jim Harper at the Cato Institute started a petition at Whitehouse.gov demanding that the TSA begin the process the court ordered it to start. So far, the petition has garnered more than 13,000 signatures; a level of 25,000 is supposed to trigger a response from the White House. While neither of these avenues is likely to result in a wholesale removal of the scanners, they at least might get the TSA to explain why it needs them (at some airports and not others)
It’s been three-plus years since the TSA should have opened this to public comment, and more than a year since it was ordered to do so by a court. That’s longer than any security line.
(Photo: Flickr Creative Commons/orangeaurochs)