July was an important month for the law, the federal Department of Homeland Security and the flying public. To understand why, you’ll need some background on the DHS’ progeny, the Transportation Security Administration (TSA) and a legal claim filed against them by the Electronic Privacy Information Center (EPIC) regarding TSA’s implementation of whole body scanners in airports throughout the country.
In July of 2010, chief counsel for EPIC sued the TSA on behalf of air travelers and good government groups seeking to prohibit use of the whole body scanners that display three-dimensional nude images of individuals passing through them.
Epic asserted that the scanners violate the 4th Amendment, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Administrative Procedures Act.
The relevant constitutional claim against the TSA was that the powerful, new advanced imaging technology captured so much personal and intimate detail of an individual’s anatomy, that it was overly intrusive and thus in violation of the 4th Amendment’s unreasonable searches prohibition.
The results of EPIC’s filing are as follows:
July 15, 2011 – Judges Ginsburg, Henderson, and Tatel of the District of Columbia Federal Appeals court ruled that the AIT scanners are constitutional. In their decision, they write that the Advanced Imaging Technology renders a “crude” image of an unclothed person.
However, the three-judge panel did find for the plaintiffs where they asserted that the TSA violated Administrative Procedures Act in failing to hold a 90-day public comment period before implementing the scanners as a primary security method, and ordered the TSA to comply with the Act.
Sept. 2011 – Members of Congress and their constituents, some 35,000 individuals, write and sign a petition to the Obama administration that reports on the decided failures of the TSA in whole, and asks that the Agency be abolished. The TSA has yet to satisfy the Court’s public comment period requirement –which, the Court stated, it should have done in 2007 when the TSA decided to roll out the scanning program in full.
Oct & Dec. 2011 – EPIC files motions with the D.C. Appeals Court asking it to enforce its ruling against the TSA, which required that the Agency hold a public comment period.
Jan. 2012 – The TSA hedges its objections to the public comment rulemaking requirement, because, as it states in its brief; it has already assured the Court that it is “working on” it, and has since reconfigured the body scanners in question such that “naked flesh” is not apparent.
March 2012 – Meanwhile, mounting public backlash to TSA policies and procedures heats up across the nation. Resentment of the flying public toward the Agency is searing.
From reports of travelers arriving to airports in bikinis, underwear, and in at least one instance, stark naked, to public forum and online discussions detailing demoralizing and dehumanizing experiences, it seems the public is no longer just concerned with TSA scanners.
“Enhanced Pat-downs” –the option given flyers in lieu of scanning, are increasingly coming under fire (see: tsaoutofourpants.wordpress.com) TSA policy of forcing the elderly or anyone else to remove all clothing to expose medical devices is viewed as unnecessary, over-zealous, and flat-out ridiculous.
In addition, questions about the health risks associated with the advanced scanners are at issue.
Public accounts are found across the Internet, and one man, Jon Corbett, attempts to bring his case against the TSA, the Department of Homeland Security, and the Federal Govt. to the U.S. Supreme Court.
July 2012 – After a full year, the TSA has still refused to hold the necessary 90-day public comment period as required by law, and ordered by the court.
Lead counsel and executive director of EPIC Marc Rotenberg files a petition for a Writ of Mandamus to the District Court that pleads the Court to send a written order of enforcement to the TSA.
And the beat goes on...