In Rejecting EPIC’s Petition On TSA’s Strip-Search Machines, Court Effectively Orders Rulemaking Timetable

by Marc Scribner on September 25, 2012 · 4 comments

in Features, Mobility, Privacy, Regulation

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This afternoon, the D.C. Circuit Court of Appeals rejected the Electronic Privacy Information Center’s (EPIC) petition for writ of mandamus, which called on the court to enforce its own order that the Department of Homeland Security (the Transportation Security Administration’s parent department) begin a legally required notice-and-comment rulemaking regarding the TSA’s use of advanced imaging technology (AIT) scanners in airports. CEI earlier submitted an amicus brief supporting EPIC’s petition on behalf of Robert L. Crandall, former chairman and CEO of AMR and American Airlines, and a coalition of organizations. Background on this case can be found here in op-ed form and here in video form.

In rejecting EPIC’s petition, the court ordered:

ORDERED that the petition for writ of mandamus be denied in light of the Government’s representation that “the process of finalizing the AIT Rulemaking documents so that the [notice of proposed rulemaking] may be published is expected to be complete by or before the end of February 2013.” Accordingly, we expect that the [notice of proposed rulemaking] will be published before the end of March 2013.

So while the D.C. Circuit denied EPIC’s petition that requested that the court order the TSA to begin the legally required rulemaking process in 60 days, the last sentence effectively requires the agency to begin the process no later than the end of March 2013. If the TSA delays, it will have one unhappy federal court on its hands.

While we hoped the notice-and-comment period would be opened sooner, we view the court’s decision as a partial victory. The TSA’s dilatory tactics that have successfully prevented public and independent expert involvement in the AIT scanner regulatory process, as required by the Administrative Procedure Act, will no longer protect it from outside scrutiny.

Bea September 26, 2012 at 5:01 am

I didn’t realize CEI supported the administrative regime that tyrannizes so much of American life.
How sad that you aren’t working to abolish the Thieves and Sexual Assailants rather then begging it, “Oh please, oh please, gate-rape us less carcinogenically.”

Marc Scribner September 26, 2012 at 7:53 am


CEI’s position on TSA is that it never should have been created and that airport security should be denationalized and privatized, with TSA abolished.

Unfortunately, the politics are not supportive of our position. In the absence of returning to private screening, we have supported EPIC’s challenge of the TSA’s lawless deployment of AIT scanners. TSA violated federal law by not allowing the public to comment on this technology, as this court has found (although it also ruled against EPIC on Fourth Amendment grounds, meaning privacy claims in the context of this proceeding are completely irrelevant). Once the rulemaking is open, outside experts will be able to demonstrate that these machines are ineffective and dangerous. Following this, assuming TSA continues to ignore the evidence, we are confident a court will find their rule supporting the continued use of these scanners to be arbitrary and capricious under the Administrative Procedure Act.

This is just the beginning of the long regulatory battle that lies ahead. Unfortunately, this is how the federal government really works — doing its dirty work through the administrative state.

Fisher1949 September 26, 2012 at 5:13 am

The scanners have cost taxpayers over $250 million yet only five items have been found by body scanners since their deployment in 2008.

Germany banned them and went back to metal detectors because of the 54% false positive rate with MMW while failing to detect items 40% of the time.

The backscatter scanners still have not been tested for radiation exposure despite multiple lawsuits and claims by radiologists that they pose a risk.

The 244 Rapi-Scan backscatter x-ray units pose a cancer risk and still produce a naked image that Denver TSA area director Pat Ahlstrom, admitted “were graphic, no doubt about it.”. These images are usually viewed by male screeners putting female passengers and children at risk of harassment.

By sending children through the x-ray scanners and taking their nude image TSA is producing child pornography in violation of numerous State and Federal laws. No one could get away with making child pornography all day and get paid to do it except TSA.

It is unacceptable and dangerous for any government agency to be unaccountable for their actions and allowed to disregard legitimate court orders and TSA is no exception.

C October 10, 2012 at 4:36 am

TSA as it is now is not worth it, read up on it if you are for TSA or apathetic. Keep fighting, everyone. Please. Write the TSA, White House, your rep, inform those around you. Thank you!

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