Court to TSA, Again: Follow the Law

August 4, 2012

Back in 2010, a group led by the Electronic Privacy Information Center [EPIC] filed a lawsuit challenging the use of full-body scanners by the US Transportation Security Administration [TSA], on the grounds of privacy, possible health risks, and questionable effectiveness.  On July 15, 2011, the US Circuit Court of Appeals for the District of Columbia ruled that the TSA had to follow the normal procedure for issuing new regulations, as specified in the Administrative Procedures Act of 1946.  Basically, this involves the TSA’s publication of the proposed regulations in the Federal Register, solicitation of public comments over a reasonable time period, and then justification for the regulation in light of the submitted comments.

A year later, as reported in an article at Ars Technica, the TSA had apparently ignored both the requirements of the statute and the Court’s order, so EPIC has returned to court with a mandamus petition to enforce the original order.  This past Wednesday, the Court issued an order [PDF] that the Department of Homeland Security (of which the TSA is a part) respond to the petition on or before August 30.

I can’t think of any sensible reason that the TSA should be excused from following the normal rule-making procedure.  It’s perfectly obvious what the intended purpose of the scanners is, so there is nothing there to give away; and it’s hard to see how allowing public comment could be harmful — it might even help.

Requiring the TSA to follow the formal rule-making procedure is important, because one of the essential steps in that process is the solicitation of public feedback. American travelers will have the opportunity to voice their concerns about the TSA’s policy, and the agency will be required to respond to those concerns. Given that so many of the TSA’s policies are shrouded in secrecy, forcing the TSA to explain its policies will be a much-needed source of transparency.

There is also a petition at the site that requests that President Obama order the TSA to comply with the law and with the court order.  (Jim Harper, Director of Information Policy Studies at the Cato Institute, discusses the petition in an OpEd article at Ars Technica.)   The petition currently has more than 19,000 signatures; if it gets 25,000 by August 9, the administration’s policy requires it to provide a formal response.  You have to register at the site in order to sign, but that requires only an E-mail address.

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