US Court of Appeals Orders TSA to Stop Breaking the Law With Nude-o-Scopes

In the weeks and months after 9/11 it felt like air travel was less safe than it used to be. But nearly a decade and a half later experience suggests otherwise.

What’s changed since 9/11 is that a terrorist can no longer get control of a passenger aircraft the way they once could.

Decades of experience up to that point led practice to be that a hijacker could direct a pilot to fly somewhere, there would be negotiations, and most passengers would eventually be safe. Post-9/11, hijackers do not get access to the cockpit (in fact, cockpit doors have been reinforced) and passengers do not sit idly by assuming that if they play it cool they’ll be safe. Anyone posing a risk to an aircraft is immediately the target of everyone on board.

We have full body scanners, which TSA agents manipulate so they can fondle attractive passengers. Current technology is millimeter wave machines, they’ve ditched the backscatter radiation devices after making huge investments there.

These machines are easy to beat. That’s why there was a TSA crackdown on leather underwear. And the machines could be beaten with a sewing kit.

It turns out that TSA use of body scanners has been illegal, and it was ruled that way back in 2011. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. July 15, 2011)

  • 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. However two and a half years after they published their rulemaking, they never actually published a regulation.

Eight years since the introduction of body scanners, and four years since a court ruled that TSA was in violation of the Administrative Procedures Act over those scanners, the Competitive Enterprise Institute and the National Center for Transgender Equality sued — and the US Court of Appeals for the DC Circuit ruled, essentially, that TSA is simply ignoring the law and court rulings in its failure to publish a rule as required by the Act.

The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the plaintiffs on Friday in the lawsuit, which was filed by the Competitive Enterprise Institute (CEI).

The group said Friday that the ruling in its favor “brings an end to the lawlessness that has plagued the [TSA’s] approach to body scanners for more than four years since the court ordered the TSA to conduct this rulemaking.

“Today’s victory will rein in TSA’s illegal body scanner policy,” CEI Research Fellow Marc Scribner said in a statement about the court ruling.

According to the ruling (.pdf):

Assuming the TSA complies with the order, they will publish a rule authorizing themselves to do what they are already doing. So they’ve been sued to force them to give themselves permission to do what they wish.

It’s not as if the Court was asked to forbid the use of body scanners until such time as TSA follows proper legal procedures to authorize them. 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 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, 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. Why are people so upset with these, but when you get a X-ray or Cat Scan people don’t care if we see your junk or not… Trust me we see your junk…

  2. So, essentially the TSA has to come up with a document, which will change nothing?
    Ah, gubmint…

  3. @Tony. Because doctors and radiologists are licensed physicians who have years of training who I trust to know what will help improve my quality of life, not people with a high-school education who are often on a power-trip and have no care for my quality of life.

    tl:dr. Doctors help people, TSA does not

  4. Tony it’s not about seeing my junk – I’ll happily show it if asked. Trust me there’s noting to see. It’s about the TSA violating my right to be free from undue search. Let’s be clear here – I have done noting wrong therefore they have no right to search me. Ask me to go thru a metal detector and X-ray my bags? Sure, as that was in place pre 9/11. More than that just becomes a huge waste of taxpayer funds and is not even good security theatre. It’s time for us to get our freedom back and the freedom to travel unimpeded is what we need. Dismantle this junk and let’s make it faster to get on the plane please.

  5. I don’t mind the body scanners. Getting through airport security is a lot quicker with the body scanners than, for example, getting into a courthouse that uses metal detectors (something I do semi-frequently as a law student and did more frequently as a runner at a law firm). The body scanners saves the *find what set off the metal detector* dance.

  6. This is all useless from the consumer side and is making lawyers rich. Eventually I’ll join the class action lawsuit and get $9 from allowing the selected few to see my scanned penis. What freedom we have!

  7. It’s called consent. Unlike with a search warrant where you must comply, TSA searches are a choice. You don’t want no search, you no fly. Even the nude-o-scope has an alternative.

    This litigation is a huge waste of time and a further waste of government resources useful only to ensure that the children of the lawyers involved will have very expensive private educations.

  8. @Graydon: you’ve said it the most succinctly of anyone I’ve read/heard regarding this theatre of the absurd. So many government agencies have violated our rights that I’m not sure we have very many, if any, left; TSA may just be the most egregious.

  9. It’s good to be a government agency, that way you do not have to obey the law because nobody is around to enforce it.

  10. So today the TSA announced they can force anyone they want to through nude body scanners. When will the courts actually enforce any of their privacy-favoring rulings? Mark my words: the TSA is the tip of the iceberg, but will be at the forefront of putting previously-free citizenry under subjection when the nascent police state declares Marshall Law.

    Of course, by then the NSA will have deleted this comment. Prepare to resist or prepare to submit. And bow to a pagan god

  11. Tony said: “Why are people so upset with these, but when you get a X-ray or Cat Scan people don’t care if we see your junk or not… Trust me we see your junk…”

    Tony, only an idiot asks such a question. But because even idiots are trainable, let me explain: Getting an X-Ray or CAT scan is medically necessary, and the professionals operating those machines and interpreting the images have taken an oath to maintain patient confidentiality. TSA agents take no such oath, and are the farthest thing from a professional workforce the government could hire. Theyve been caught hundreds of times violating passenger privacy by using images for prurient purposes, and that’s evidence enough that tens of thousands of times they did it without being caught. Hopefully you are at least an enlightened idiot now.

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