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Civil Rights

Advocacy Groups Sue to Force TSA to Publish Body-Scanner Regulations within 90-Days

— July 16, 2015


An image of Susan Hallowell, Director of the TSA’s research lab taken with the backscatter x-ray system commonly used in airports nationwide Photo courtesy of TSA/Wikipedia

Three non-profit groups are suing the Transportation Security Administration (TSA) in D.C. Appeals Court for its failure to comply with a 2011 court order requiring the agency to write formal rules regarding its controversial body scanners. The lawsuit was filed on Wednesday, which marked the four-year anniversary of the order. The same court ruled in a lawsuit filed by the advocacy group, Electronic Privacy Information Center (EPIC), requiring the agency to publish formal regulations regarding the machines. Three groups are arguing that the machines render nearly naked images of passengers, and along with TSA pat-downs, violate travelers’ civil rights. As the agency has yet to write the rules, limited government group, the Competitive Enterprise Institute (CEI), and civil rights’ advocates, the National Center for Transgender Equality (NCTE) and the Rutherford Institute filed the lawsuit demanding that the TSA publish the mandated regulations within a 90-day period. Although the TSA did draft proposed regulations in 2013, they were never finalized or made official.

CEI research fellow and one of the lawsuits petitioners, Marc Scribner said about the delay, “For four years the TSA has flouted the court’s order, preventing the public and outside experts from scrutinizing their actions as required under the law. This lawsuit aims to enforce that court decision and bring much needed accountability to an agency plagued by lawlessness.” There are over 740 of the scanning machines throughout over 160 U.S. airports. The machines were introduced in 2007 in order to reduce unwarranted pat-downs under the previous procedures, causing excessive delays and traveler complaints over invasion of privacy. Upgrades to the scanner’s programming in later models replaced the nearly-naked images with cartoon renderings of the passenger; however NCTE policy director Harper Jean Tobin alleges in the lawsuit that transgender groups receive more scrutiny than other travelers, including body scanners and pat downs, and consistent written guidelines must be produced. Tobin said the groups filed the lawsuit because “The public deserves clear rules that address the effectiveness and the privacy impact of practices that affect millions of Americans every day.”

The lawsuit follows a major upheaval in the TSA following the damning revelations last month that employees failed to find 67 of 70 fake bombs in a test conducted by the Department of Homeland Security’s Inspector General’s office. The leaked disclosure, reported by ABC news, cost interim TSA director Melvin Carraway his job and shocked air travelers throughout the country. Carraway had assumed the post in January. Some legislators including Representative Jason Chaffetz (R-UT), and Senators Bill Nelson (D-FL) and John Thune (R-SD), have all made statements condemning the test’s massive failure, hinting that TSA reform legislation may be forthcoming, although unlikely. Freshly appointed TSA administrator Peter Neffenger has vowed to improve the security protocol of the agency, which likely include changing in some degree the scanning technology and procedures. The TSA has defended the use of the scanners however; claiming that the machines are useful in finding non-metallic explosives, citing the 2009 underwear bombing suspect as an example.



New York Times – Jada F. Smith

USA Today – Bart Jansen

Washington Examiner – Pete Kasperowicz







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