TSA Has Been Breaking the Law with Nude-o-Scopes for 7 Years. Is That About to Change?

In light of revelations that the TSA fails to stop bombs and weapons going through the checkpoint 95% of the time, we can expect even more security theatre and less efficient screening.

We’ve subjected ourselves to the War on Water (and extortionate bottled water pricing from the newsstand-industrial complex), long waits, ID checks, pat downs, naked pictures of ourselves, and exposure to radiation. All to make us feel more safe.

And in the process the Federal Courts have found that TSA has blatantly flouted the law.

Last week the Competitive Enterprise Institute and the National Center for Transgender Equality have filed a petition with the Federal Appeals Court for the DC Circuit to require the Department of Homeland Security to publish its rule on Advanced Imaging Technology screening (nude-o-scopes).

The DC Circuit already ruled (EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. July 15, 2011) that:

  • TSA’s decision to use body imaging is subject to the Administrative Procedures Act
  • In other words, since passengers are ‘substantially affected’ by the decision the TSA must hear and consider comment on it (“substantively affects the public to a degree sufficient to implicate the policy interests animating notice‐and‐comment rulemaking.”)
  • TSA, then, was in violation of federal statute from the time it began rolling out these machines in 2007.
  • The TSA was ordered to go through the rule-making process.

After 18 months of the TSA ignoring this federal court order, the court instructed that they had to comply and publish a rulemaking by March 2013. They did with days to spare.

Now, over 2 years later and with about 5000 public comments filed, the TSA still has not issued a final rule on the use of body scanners.

So they’re being sued by what some might see as an unusual alliance — a free market group most recently known for the Obamacare Supreme Court case, King v. Burwell and a transgender rights group. But it makes some sense since 21% of transgender individuals report harassment at the checkpoint and about 1000 comments on the body imaging rulemaking proposal came from the transgender community.

The suit contends that after 8 years since the introduction of body scanners, and four years since a court ruled TSA in violation of the Administrative Procedures Act over those scanners, that TSA is simply ignoring the law and court rulings in failure to publish a rule as required by the Act.

That’s all well and good, and it would be fantastic if TSA believed it was subject to the rule of law, however.

  1. I imagine they’ll say that 5000 comments are a lot to work through
  2. And that security rules are important and they need to take their time to get it right
  3. Further, that two years from a Notice of Proposed Rulemaking isn’t much longer than many rules dealing with more trivial subjects take to go final

They’ll say they’re working on it, and the Court will probably take their word for it. They could say that they expect to hold TSA to its promise of when a rule will be final. So sue again later if they miss that deadline.

But what if they do publish their final rule? They’ll just essentially be authorizing themselves to do what they wish. Why sue the TSA to force them to give themselves permission? What of it?

The Court ought to be asked to forbid the use of body scanners until such time as TSA follows proper legal procedures to authorize them. But this lawsuit does not seek such relief.

Instead, once the TSA finally publishes a rule authorizing the use of body scanners that have been in use since 2007, we’ll get more lawsuits most likely — contending that they’ll impermissibly failed to consider public comments in their rulemaking process, such as those demonstrating that whole body imaging:

  • Fails to improve security
  • Is easy to foil
  • Is expensive
  • While place a substantial burden on fundamental rights (privacy, right to travel, the right to be free from search based on a general warrant)

And at the end of those lawsuits, the Courts will presumably defer to the ‘experts’ at TSA and Homeland Security who are supposed to know what’s best for our security.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. It’s a government agency. And government agencies do not have to abide by any laws and can do as they see fit. This has been proven for ages now under any administration regardless of party affiliation.

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