TSA Replies to Court

September 2, 2012

Back at the beginning of August, I posted a note about the status of a court case involving the US Transportation Safety Administration [TSA], and its use of “full body” scanners to screen airline passengers.   The case originated with a lawsuit by a group of plaintiffs, led by the Electronic Privacy Information Center [EPIC], challenging the use of the scanners (which the TSA calls Advanced Imaging Tchnology[AIT]) on the grounds of privacy, safety, and 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 rule-making in light of the submitted comments.  This summer, since the TSA had not complied with the Court’s order, EPIC returned with a mandamus petition, seeking to compel the TSA’s compliance.  On August 1, the Court ruled that the Department of Homeland Security [DHS] (of which the TSA is a part) respond to the petition on or before August 30.

As reported in an article on the “Threat Level” blog at Wired,  the TSA has given a response [PDF] to the Court.  The basic thrust of the response is that there has been no delay, and that the TSA is expediting the “Notice of Proposed Rulemaking”[NPRM] to comply with the order.  The first section of the response is mainly legal argument and citations; the second, more substantive part, is a statement by John Sammon, Assistant Administrator for the Office of Security Policy and Industry Engagement.

Perhaps the Court will take a different view, but I do not find this statement terribly convincing.  It begins by noting that a “major milestone” has been reached, because the documents required for the NPRM have been submitted to the DHS for review.  That is, a major milestone has been reached because the DHS has submitted some documents to itself for review.  The statement also argues that the departure of two economists from the TSA staff have slowed the proces.   It also says that, because the AIT scanners have been in use, the process of estimating the cost of their use is more diffcult, compared to a case where only estimates were available.  I think this is the first time I have heard someone make the argument that having actual use data makes estimation more difficult.  Finally, the TSA argues that it has made improvements to the AIT systems to address privacy concerns.  (To be fair, I think this is true to some extent; some scanners have been modified to show generic body images, rather than anatomical detail.)  The TSA says that it expects to begin the notice and comment period by the end of February, 2013.

I find it hard to undestand why the preparation of the NPRM should take more than a year and a half; assuming that the original decision to use the AIT devices was made on some sort of rational basis, the TSA should already have the information that is required. It seems to me that the TSA is stalling, hoping they can make enough more-or-less cosmetic improvements to the program to make the critics go away.   Security Theater is still, apparently, the order of the day.

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