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When Will TSA Start Notice and Rulemaking for Airport Scanners?

By Robyn Hagan Cain on September 13, 2012 | Last updated on March 21, 2019

We've been flying a lot lately, so we've become all-too-familiar with the not-so-gentle touch of the Transportation Security Administration's enhanced patdown.

Why would we opt for a stranger's (literally) back-handed caress over the comparatively-painless backscatter? Because the TSA still hasn't complied with a D.C. Circuit Court of Appeals order to engage in proper rulemaking exercise to use the "naked scanners."

Principles, people.

In July 2010, the Electronic Privacy Information Center (EPIC) asked the D.C. Circuit to review TSA's decision to use advanced imaging technology (AIT) instead of magnetometers as the primary means of screening airline passengers. (AIT, by the way, is the official government term for the colloquial "naked scanners.") EPIC argued that AIT violates various federal statutes and the Fourth Amendment and, in any event, should have been the subject of notice-and-comment rulemaking before being adopted.

The D.C. Circuit didn't buy the Fourth-Amendment-prohibits-virtual-strip-searching argument, but it agreed that TSA had not justified its failure to issue notice and solicit comments about the change. The appellate court recognized the "obvious need for the TSA to continue its airport security operations without interruption," so it remanded the policy to TSA but did not vacate it. Instead, the court instructed the agency to promptly initiate notice and rulemaking procedures regarding AIT.

In case you haven't noticed, that rulemaking rigmarole still hasn't happened.

EPIC submitted a Freedom of Information Act request to the TSA in July, seeking documents about whether the agency "actually intends to give the public the opportunity to comment on the controversial body scanner program." (So ... a passive-aggressive FOIA request ...)

Since more than a year has passed since the D.C. Circuit ordered the agency to "act promptly," the organization also submitted a Petition for Mandamus, asking the appellate court to require TSA to issue a proposed rule within 60 days or suspend the program.

What do you think? Will TSA actually respond? Will the D.C. Circuit benchslap the Agency for dragging its figurative feet?

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