The Transportation Security Administration denied Thursday it was stonewalling a federal appeals court’s year-old decision demanding the agency hold public hearings concerning the so-called nude body scanners installed in U.S. airport security checkpoints.
On July 15, 2011, the U.S. Circuit Court of Appeals for the District of Columbia Circuit set aside a constitutional challenge brought by the Electronic Privacy Information Center trying to stop the government from using intrusive body scanners across U.S. airports. But the decision also ordered TSA “to act promptly” and hold public hearings and publicly adopt rules and regulations about the scanners’ use, which it has not done, in violation of federal law, the court ruled.
The agency said in a court filing Thursday that there was “no basis whatsoever for its assertion that TSA has delayed implementing this court’s mandate.” (.pdf)
The TSA said the agency was having staffing issues and was awaiting approval from the Department of Homeland Security and the Office of Management and Budget before it releases public documents associated with its 2009 decision to make the body scanners the “primary” security apparatus at the nation’s airports.
The court on Aug. 1 ordered (.pdf) the TSA to explain why it had not complied with its order. In response, the agency said Thursday it was expected to publish, by the end of February, a notice in the Federal Register opening up the Advanced Imaging Technology scanners to public comments and public hearings. That would be 19 months after the court order.
The public comments and the agency’s answers to them are reviewable by a court, which opens up a new avenue for a legal challenge to the agency’s decision to deploy the scanners. Critics maintain the scanners, which use radiation to peer through clothes, are threats to Americans’ privacy and health, which the TSA denies.
The agency also said Thursday that, “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.”
Days after the court’s decision last year, the TSA began moving toward displaying to screener technicians broad, generic outlines of passengers instead of taking virtual nude shots.
The three-judge appellate court, which is one stop from the Supreme Court, said that the Transportation Security Administration breached federal law when it formally adopted the Advanced Imaging Technology scanners as the “primary” method of screening. The judges — while allowing the scanners to be used — said the TSA violated the Administrative Procedures Act for failing to have a 90-day public comment period, and ordered the agency to undertake one.
Under the Administrative Procedures Act, agency decisions like the TSA’s move toward body scanners must go through what is often termed a “notice and comment” period if their new rules would substantially affect the rights of the public — in this case, air passengers. The Environmental Protection Agency often undertakes “notice and comment” periods for proposed pollution regulations.
But the court’s decision last year did not penalize the TSA for its shortcomings. The TSA argued to the court that a public comment period would thwart the government’s ability to respond to “ever-evolving threats.”