Electronic Privacy Information Center (EPIC) Suit Shows
Public's Right To Comment Was Bypassed
As a result of a lawsuit brought by EPIC, the D.C. Circuit Court
of Appeals has ruled last Friday that the TSA violated federal law
when it installed body scanners in airports for primary screening
across the country without first soliciting public comment.
The Administrative Procedure Act requires federal agencies to
provide notice and opportunity for comment when implementing a rule
that affects the rights of the public. The Electronic Privacy
Information Center had filed suit against the agency in 2010,
citing violations of federal law (including the Administrative
Procedure Act) and the United States Constitution. EPIC argued that
the Department of Homeland Security "has initiated the most
sweeping, the most invasive, and the most unaccountable
suspicion-less search of American travelers in history."
In its ruling, Judge Ginsburg, writing for the Circuit Court of
Appeals agreed with EPIC, stating that “it is clear that by
producing an image of the unclothed passenger, an [body] scanner
intrudes upon his or her personal privacy in a way a magnetometer
does not….Indeed, few if any regulatory procedures impose
directly and significantly upon so many members of the
public.” The Court then concluded that “TSA has not
justified its failure to initiate notice--and--comment
rulemaking before announcing it would use AIT scanners for primary
screening.”
“We are pleased with the court's decision,” said
Marc Rotenberg, President of EPIC and lead counsel in the case,
“The TSA is now subject to the same rules as other government
agencies that help ensure transparency and accountability.
"Many Americans object to the airport body scanner program. Now
they will have an opportunity to express their views to the TSA and
the agency must take their views into account as a matter of
law.” Mr. Rotenberg continued, “The court's decision
also makes clear that travelers have a legal right to opt--out
of the body scanner search. And travelers will be free to exercise
that right without coercion.”
Co--plaintiff law professor and rights activist, Chip Pitts
of Stanford Law School observed that “while the court's
constitutional analysis is flawed given the ineffectiveness of the
body scanners to detect the explosives for which they were
supposedly designed, it is most welcome that the ruling finally
offers procedural hope for the vindication of fundamental rights by
giving the public the opportunity to protest against these
arbitrary and counterproductive machines.”
It is unclear whether either party will appeal this ruling. EPIC
succeeded in an earlier lawsuit against the Homeland Security
program concerning the body scanner program. In a Freedom of
Information Act lawsuit, EPIC obtained government records that
revealed that the TSA required that the devices be able to store
and record images of naked air travelers.
In a related suit against the United States Marshall Service,
EPIC also obtained 35,000 stored images from a single body scanner
operated in a courthouse.
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