WASHINGTON, D.C. — Challenging the Transportations Security Administration’s (TSA) airport screening protocols as ineffective, invasive, unlawful and unhealthy, The Rutherford Institute has asked a federal court to strike down the agency’s use of whole body scanners, which have been likened to virtual strip searches.
In a brief filed with the Competitive Enterprise Institute (CEI) in the U.S. Court of Appeals for the District of Columbia, Rutherford Institute attorneys argue that the TSA failed to consider the public health risks and violation of privacy caused by the use of the advanced imaging technology, also known as whole body imaging technology (WBI), as the primary method of airline passenger screening. Moreover, the brief asks the court declare that the TSA acted arbitrarily, capriciously and contrary to law in promulgating its rules on the use of WBI technology at airports. The Rutherford Institute and CEI’s legal challenge to the TSA’s passenger screening procedures as ineffective and unlawful follows in the wake of reports indicating that TSA agents using WBI scanners failed to detect explosive material smuggled through by undercover Homeland Security units at some of the nation’s busiest international airports, including Minneapolis-St. Paul International Airport.
“‘We the people’ have not done the best job of holding our representatives accountable or standing up for our rights,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “However, something as expensive, invasive and seemingly ineffective as these scanners certainly shouldn’t be foisted on an unsuspecting American populace without the absolute assurance that it will not harm our health or undermine our liberties.”
The TSA began using WBI technology at airports for security screening in 2007. WBI generates a highly-detailed image that exposes intimate details of a person’s body to government agents. In 2009, the TSA began using WBI as a primary means of screening passengers, deploying the scanners at airports throughout the country, but without the support of any legislation or agency regulation. In May 2009, The Rutherford Institute and 30 other organizations sent a letter to the Department of Homeland Security (DHS) demanding the DHS implement rulemaking procedures in accordance with the Administrative Procedures Act (APA), which requires the agency to give formal notice to the public of proposed actions and an opportunity to comment on the proposed action, in connection with the deployment of WBI scanners. When the TSA failed to notify the public of its decision to deploy the scanners or ask for public comments on use of the use of WBI technology as required by federal law, a lawsuit was brought alleging that this failure violated the APA.
In July 2011, the U.S. Court of Appeals for the District of Columbia ruled that the TSA’s implementation of WBI scanners without conducting rulemaking proceedings did violate federal law and ordered the agency to begin such proceedings. When the TSA failed to issue a proposed rule for over a year, the matter returned to the court, which directed that the TSA issue a proposed rule on WBI scanners by March 2013. The TSA issued its rule on March 3, 2016, but CEI and The Rutherford Institute filed a challenge asserting the rule is arbitrary and capricious because TSA failed to consider that WBI will cause more people to travel on highways, a riskier form of transportation, causing more deaths than use of WBI would save.
Hans Bader and Sam Kazman of CEI are helping to advance the legal arguments.