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Federal Court Upholds TSA Use of Full-Body Scanners at Airports

The court added the TSA should have sought public comment before deploying them.

A federal court upheld the U.S. Transportation Security Administration’s (TSA) use of full-body scanners to screen air travelers, but the court added the TSA should have sought public comment before deploying them.

In an opinion issued July 15 on the case Electronic Privacy Information Center (EPIC) vs. U.S. Department of Homeland Security (No. 10-1157), the U.S. Court of Appeals for the District of Columbia Circuit ruled the machines, known as Advanced Imaging Technology (AIT), were not an unconstitutional search and declined to halt their use despite the TSA not following proper procedure.

In the court’s opinion, Judges Douglas Ginsburg, Karen LeCraft Henderson and David Tatel ruled against the plaintiff’s argument that the TSA’s use the AIT scanners constituted an illegal search under the U.S. Constitution’s Fourth Amendment. “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 court said. “An administrative search does not require ‘individualized suspicion’,” which is required by police at a sobriety checkpoint “to detect evidence of ordinary criminal wrongdoing.”

In addition, “Any passenger may opt-out of AIT screening in favor of a pat-down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive,” the opinion says.

Conversely the court said the TSA failed to provide public notice that it was deploying AIT scanners and to seek public comment. The deployment of the scanners, which allow screeners to see under an air passenger’s clothes in a bid to detect hidden explosives, was significant enough that the TSA should have sought public input, the court said. “The TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening. None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule,” therefore, the judges granted “the petition in part.”

As a result, EPIC says it is “pleased with the court’s decision” because TSA now has to follow federal rulemaking procedures for the deployment of AIT scanners. “The TSA is now subject to the same rules are other government agencies that help ensure transparency and accountability,” said Marc Rotenberg, EPIC’s president. “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,” he said.

EPIC has not said if it, or co-plaintiff Chip Pitts of Stanford Law School, will further appeal the ruling.