Source: Steve Watson

The TSA has denied that it is defying the law by ignoring a now more than one year old court order to conduct a public comment process with regards to its use of so called naked body scanners.

The machines have been systematically rolled out in airports throughout the nation over the last three years without public consultation. This act has been ruled by the U.S. Circuit Court of Appeals for the District of Columbia to be a violation of federal law. Earlier this month, the court finally ruled that the TSA had until August 30th to to provide a reason why the agency has not held public hearings on guidelines for the body scanners.

That deadline expired yesterday and the TSA has responded.

In a court filing issued yesterday, the TSA claimed that there was “no basis whatsoever for (the) assertion that TSA has delayed implementing this court’s mandate.” (.pdf)

The agency again cited “staffing issues” as a reason for the delay, and claimed it cannot yet release documents pertaining to the rollout of the scanners and the decision that was taken in 2009 to make them the “primary” method of security in airports all over the country.

The TSA says it is awaiting approval from the Department of Homeland Security and the Office of Management and Budget in order to release the information to the court.

The agency also added that it expects to be able to begin public hearings on the scanners by the end of February 2013, a full 19 months after the original court order mandating it to do so, and almost four years after it rubber stamped the deployment of the machines.

  • A D V E R T I S E M E N T

The Electronic Privacy Information Center (EPIC), which originally brought the case, had attempted on no less than THREE occasions over the past 12 months to get the court to enforce the law on the TSA.

In its petition, EPIC notes that the agency’s delay in acting poses risks to travelers, defies the Court’s authority, and is flat out unlawful.

The TSA had argued that it “should not have to stop every five minutes for comment and rulemaking”, and that it did not have the resources to do so in any case.

EPIC has previously argued in court 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 has received support for its action against the TSA from The Competitive Enterprise Institute, which issued a brief that argues that the TSA’s claims that it does not have the resources to comply with the public rulemaking process are entirely bogus:

“If the TSA is unable to manage its tremendous budget of nearly $8 billion in a manner that enables the agency to follow well-established laws, this Court is obligated to exercise its authority to compel the agency to follow duly enacted laws.” the brief reads.

“Curiously, the obstacles responsible for the TSA’s delayed rule-making here do not appear to have forestalled the agency’s aggressive deployment of AIT scanners in airports nationwide.” it continues.

“This course of conduct is hardly indicative of an agency so starved for resources that it cannot comply with a straightforward judicial mandate within one year. Moreover, the TSA’s purchase of hundreds of new scanners after this Court’s July 2011 decision in EPIC suggests the agency intends to continue doing as it pleases without regard to public input or duly enacted laws.”

The TSA responded Thursday, stating; “In preparing the proposed rule, TSA has addressed significant developments in AIT technology that have a major impact on the privacy concerns stressed in the EPIC petitioners’ lawsuit. In particular, TSA has addressed the development of Automated Target Recognition technology, which enhances privacy protection in the screening process.”

CEI and EPIC have also been joined in their calls by The Electronic Frontier Foundation (EFF) and The Cato Institute.

Jim Harper, the director of information policy studies at the Cato Institute, recently issued a petition to the White House on the matter.

However, just as the petition was set to reach a total of 25,000 signatures, at which point the President is obligated to publicly respond, it was mysteriously pulled from the White House website, never to return. Officials claimed the site had gone down for “maintenance” and then claimed the petition had expired during that time.

The federal government has invested close to a billion dollars so far into a fleet of 800 scanners, and the TSA has outlined plans to buy nearly 1,000 more in the next two years.

The TSA is continuing to roll out more full body scanners in airports across the country despite the fact that a recent Congressional report concluded that the agency “is wasting hundreds of millions of taxpayer dollars by inefficiently deploying screening equipment and technology to commercial airports.”

Another recently discovered Homeland Security report noted that federal investigators have “identified vulnerabilities in the screening process” involving the scanners.

The reports provided a basis for renewed investigation of claims made in March by Engineer Jon Corbett who posted a video of himself demonstrating how the body scanners can easily be bypassed.

The TSA initially responded to the revelations, describing Corbett as “some guy” who had launched a “crude attempt to allegedly show how to circumvent TSA screening procedures.”

The agency failed to even address the fact that Corbett had proven the body scanners could be easily defeated, and then it threatened journalists not to cover the story.

Corbett has continued his efforts to expose flaws in the body scanner program by interviewing TSA whistleblowers who have admitted that the scanners routinely fail to pick up prohibited items such as knives, guns and powder designed to resemble explosive material. Corbett also recently testified in a congressional hearing on the scanners.

As we have previously noted, multiple other security experts have gone on record saying that the scanners are ineffective.