Free-market research and advocacy group the Competitive Enterprise Institute (CEI) (disclosure: I held a one year fellowship with CEI in 1999-2000), along with the National Center for Transgender Equality, The Rutherford Institute and CEI's President Lawson Bader and Marc Scribner, a fellow in CEI's Center for Technology and Innovation as private individuals), this week filed a lawsuit in the U.S. District Court of Appeals for the D.C. Circuit, challenging the Transportation Security Administration's use of "advanced imaging technology" full body scanners, on administrative grounds.
As an emailed press release from Scribner described the suit, it:
requests the court enforce its July 15, 2011, decision that found the TSA's deployment of body scanners in violation of the Administrative Procedure Act. The 2011 court ordered the TSA to "promptly" open a rulemaking proceeding and produce a final rule. Today is the four-year anniversary of the court order and we still do not have a final rule to evaluate and potentially challenge. In fact, given that TSA has been rolling out body scanners since 2007, they have been violating the APA for eight years.
I reported on the TSA's failure to wrap up that rulemaking procedure all the way back in 2012.
Excerpts from the suit filing:
we respectfully ask this Court to issue a writ of mandamus to compel the Secretary of Homeland Security to publish a final rule regarding TSA's use of AIT for passenger screening within 90 days…..
On why the National Center for Transgender Equality saw it necessary to join this suit:
In a 2008–09 national survey conducted by NCTE and the National Gay and Lesbian Task Force, 21% of transgender people reported experiencing harassment or other discrimination at an airport. NCTE has been involved in education and advocacy on the issue of passenger screening for many years, providing information to transgender members of the public, technical assistance and training to TSA personnel, and engaging members of the public to file nearly 1,000 comments on the agency's 2013 notice of proposed rulemaking.
Their core arguments, in capitalized subheds from the filing. Each subhed has detailed explanations in the full filing:
TSA'S BODY SCANNERS AFFECT MILLIONS OF AMERICANS DAILY, BUT DESPITE TWO RULINGS FROM THIS COURT, THE AGENCY CONTINUES TO SHIELD ITS POLICY FROM PUBLIC INPUT AND JUDICIAL REVIEW….
TSA HAS UNREASONABLY DELAYED PUBLISHING ITS BODY SCANNER RULE, WARRANTING EXTRAORDINARY RELIEF FROM THIS COURT….
THIS COURT HAS EXERCISED ITS AUTHORITY TO COMPEL UNLAWFULLY WITHHELD AGENCY ACTION IN SIMILAR CIRCUMSTANCES….
TSA's $7.4 billion budget, the suit points out, is larger than that of the entire federal judiciary. The suit also points out "In June 2015, the results of an audit of TSA's airport screening practices by the Department of Homeland Security's Office of Inspector General were leaked,revealing a 96 percent failure rate."
Harper Jean Tobin, policy director for the transgender group, said travelers who are different will bear the brunt of relying on body scanners and pat-downs. Transgender travelers typically experience greater scrutiny at the airport because of their appearance, identification or physical features, according to the lawsuit.
"The public deserves clear rules that address the effectiveness and the privacy impact of practices that affect millions of Americans every day," Tobin said.
CEI's contribution to the so-far meaningless comment-seeking in the long-postponed rulemaking, pointing out the lack of meaningful cost-benefit analysis proving the scanners are a good use of government resources and citizens' time and liberty.
It's a shame that courts haven't been sympathetic in the past to basic Fourth Amendment arguments against the use of those scanners. Getting the TSA to promulgate and follow set rules for their use would be a positive sign that we are still pretending at time to live under that ol' government-of-laws-not-men.
But a government respectful of liberty of travel, privacy, and a sensible use of its and our time and resources, should rethink using them entirely.