On The Front Lines
Victory: Appeals Court Orders Transportation Security Administration to Set Regulations on Use of Whole Body Scanners at Airports
WASHINGTON, D.C. — A federal appeals court has ordered the Transportation Security Administration (TSA) to move forward with establishing rules and regulations governing the use of whole body scanners, which have been likened to virtual strip searches, in the nation’s airports. The order came in response to a lawsuit filed by The Rutherford Institute, along with the National Center for Transgender Equality (NCTE) and The Competitive Enterprise Institute (CEI), asking the court to compel the TSA to issue formal rules regulating the use of Whole Body Imagers (WBI) and subject those standards to public examination and judicial review.
TSA implemented WBI (also referred to as Advanced Imaging Technology) in 2009 as a primary security screening tool in airports. However, the agency did not notify the public of its decision to deploy the scanners, nor did it ask for public comments on use of the use of WBI technology as required by federal law. In a petition for a writ of mandamus filed with the U.S. Court of Appeals for the District of Columbia, The Rutherford Institute and its coalition groups argued that the TSA has flouted federal law and court orders in order to shield the agency’s WBI scanning practices from public input and judicial review.
“We are the unwitting victims of a system so corrupt that those who stand up for the rule of law and aspire to transparency in government are in the minority. This corruption is so vast it spans all branches of government, from the power-hungry agencies under the executive branch and the corporate puppets within the legislative branch to a judiciary that is, more often that not, elitist and biased towards government entities and corporations. The whole body imaging scanners are a perfect example of this collusion between corporate lobbyists and government officials,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “‘We the people’ have not done the best job of holding our representatives accountable or standing up for our rights. Something as invasive as these scanners certainly shouldn’t be forced on the American public without the absolute assurance that it will not harm our health or undermine our liberties. At a minimum, the TSA should be required to establish rules governing the use and deployment of these scanners and have those regulations vetted by the public.”
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 without the support of any legislation or agency regulation. Currently, around 740 WBI scanners are in use at airports around the nation.
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 withdraw the scanners or conduct notice-and-comment rulemaking, 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. Although the TSA did so and received notice and comment on the proposed rule, it has failed to issue a final rule regulating the use of WBI scanners, input and judicial review.
Hans Bader and Sam Kazman of CEI are helping to advance the legal arguments.
July 16, 2015: Rutherford Institute Sues Transportation Security Administration Over Virtual Strip Searches, Unregulated Use of Whole Body Imagers at Airports