The D.C. Circuit Court of Appeals ruled today that the TSA violated federal law by rolling out radiation firing body scanners in airports without soliciting public comment. The court will allow use of the scanners to continue, however.
A unanimous three-judge panel ruled that the TSA’s failure to provide notice and allow sufficient time for comment before adopting the technology as a primary passenger-screening tool was unlawful.
“[M]uch public concern and media coverage have been focused upon issues of privacy, safety, and efficacy, each of which no doubt would have been the subject of many comments had the TSA seen fit to solicit comments upon a proposal to use [advanced imaging technology] for primary screening,” the court said.
Specifically, the TSA’s actions violated the Administrative Procedure Act, which requires federal agencies to provide notice and opportunity for comment when implementing a rule that affects the rights of the public.
Judge Douglas Ginsburg found there was “no justification for having failed to conduct a notice-and-comment rulemaking,” and said, “few if any regulatory procedures impose directly and significantly upon so many members of the public.”
The court said that the roll out of body scanners could not be “merely interpretive, procedural, or a general statement of policy.”
The TSA, currently operating close to 500 scanners in 78 airports and planning to add 500 more scanners by the end of 2011, must now receive comment on it’s continued deployment of the technology and respond accordingly by law, finally giving critics an official voice on the issue.
The case was brought by the Electronic Privacy Information Center (EPIC), which argued in its brief that body scanners are “invasive, unlawful, and ineffective,” and that the TSA’s deployment of the devices violated the U.S. Constitution and several other federal statutes.
The rights group is pursuing a case to completely suspend use of the scanners in airports.
EPIC president Marc Rotenberg described the court’s ruling as a “very good decision with far-reaching implications.”
Rotenberg said in a statement that the TSA “is now subject to the same rules as other government agencies that help ensure transparency and accountability. Many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law.”
EPIC also argued that the scanners violate the Fourth Amendment by allowing for unreasonable searches, noting that a scan “is more invasive than is necessary to detect weapons or explosives”.
The court stopped short of ruling the scanners unconstitutional, however, noting “we are not persuaded by any of the statutory or constitutional arguments against the rule.”
The panel concluded that use of the scanners by the TSA should continue.
“Due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it,” the court said in its ruling.
“Because vacating the present rule would severely disrupt an essential security operation… and the rule is, as we explain below, otherwise lawful, we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.” the court declared.
The court also noted that passengers have complained about the pat-down alternative to the body scan, calling it “unnecessarily aggressive.”
The case has been ongoing since March. In opening testimony, a Justice Department attorney told the judges that the Department of Homeland Security has the authority to literally strip search Americans inside airports if it determines that is the correct course of action to deal with “ever-evolving threats”.
The Transportation Security Agency (TSA) “should not have to stop every five minutes for comment and rulemaking” the attorney argued at the time.