Court orders TSA to finalize rule on full-body scanners

A federal judge ordered the Transportation Security Administration (TSA) on Friday to quickly finalize a rulemaking procedure for the controversial full-body scanners it uses at airport security checkpoints across the country. 

The agency was sued by the Competitive Enterprise Institute (CEI) over the controversial devices in a lawsuit that argued that the TSA did not follow federal procedure for rulemaking when it decided to deploy the scanners, which are known as Advanced Imaging Technology (AIT) devices.  

The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the plaintiffs on Friday, ordering the TSA to “submit to the court a schedule for the expeditious issuance of a final rule” on the full-body scanners within 30 days. 

{mosads}The CEI group said Friday that the ruling in its favor “brings an end to the lawlessness that has plagued the [TSA’s] approach to body scanners for more than four years since the court ordered the TSA to conduct this rulemaking.

“Today’s victory will rein in TSA’s illegal body scanner policy,” CEI Research Fellow Marc Scribner said in a statement about the court ruling. 

“We are pleased the court agreed with our petition that TSA has taken far too long to comply with the basic rulemaking process that all agencies must follow,” Scribner continued. “We look forward to examining the final rule to see how the TSA considered the thousands of public comments on how, why, and where the TSA can use body scanners.”

The lawsuit, which was filed in July, argued that TSA began deploying the X-ray scanners in 2007 without taking comments from aviation industry stakeholders as required by federal law. 

“TSA has taken far too long to heed this Court’s mandate by publishing a rule regarding AIT screening,” the CEI wrote in its petition to the court. 

“Flouting the [Administrative Procedure Act] for eight years—despite repeated public requests to conduct notice‐and‐comment rulemaking and four years after this Court ordered the agency to do just that—is unreasonable and unlawful,” the lawsuit continued. TSA’s chronic failure to timely comply with this Court’s mandate evinces crippling bureaucratic inefficiency, especially for an agency with over 50,000 full‐time equivalent employees.” 

The TSA’s use of full-body scanners has been challenged in court before. 

The Electronic Privacy Information Center and a pair of individual citizens had argued before the same Washington court in 2011 that the TSA’s “advanced imaging technology” was a violation of the Fourth Amendment right to be protected from unreasonable searches and seizures.

But the court ruled that year that the technology is legal. 

“In view of the Supreme Court’s ‘repeated refusal to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,’ and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment,” the court said its 18-page July 2011 ruling. 

“As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an ‘administrative search’ because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack,” the ruling continued. 

TSA declined to comment on the new court ruling on Friday afternoon. 

-This story was last updated with new information at 9:32 p.m.