Challenging the TSA’s Screening Protocols as Ineffective, Invasive, Unlawful and Unhealthy
by John W. Whitehead
WASHINGTON, D.C. — Pointing to evidence that the Transportations Security Administration’s (TSA) airport screening protocols are ineffective, invasive, unlawful and contrary to public safety, The Rutherford Institute and the Competitive Enterprise Institute (CEI) have asked a federal court to reject the agency’s established protocols and strike down its use of whole body scanners, which have been likened to virtual strip searches.
In a reply brief filed in the U.S. Court of Appeals for the District of Columbia, attorneys for The Rutherford Institute and CEI argue that the TSA has failed to explain why it did not consider the public health risks and violation of privacy caused by the use of the advanced imaging technology, also known as whole body imaging technology (WBI), as the primary method of airline passenger screening. The Rutherford Institute and CEI have asked the court declare that the TSA acted arbitrarily, capriciously and contrary to law in promulgating its rules on the use of WBI technology at airports. The legal challenge to the TSA’s passenger screening procedures as ineffective and unlawful follows in the wake of reports indicating that TSA agents using WBI scanners failed to detect explosive material smuggled through by undercover Homeland Security units at some of the nation’s busiest international airports, including Minneapolis-St. Paul International Airport.
Hans Bader and Sam Kazman of CEI are helping to advance the legal arguments. The reply brief in CEI et al v. USDHS is available at www.rutherford.org.
“Anything as expensive, invasive and seemingly ineffective as these scanners certainly shouldn’t be foisted on an unsuspecting American populace without the absolute assurance that it will not harm our health or undermine our liberties,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “‘We the people’ have not always done the best job of holding our representatives accountable or standing up for our rights, but there must be a limit to our temerity. Clearly, there are enough concerns about the health risks posed by these scanners to justify placing a moratorium on their use in airports. At a minimum, the DHS and the TSA need to find a better way to protect national security without sacrificing our health and our freedoms.”
The TSA began using WBI technology at airports for security screening in 2007. WBI generates a highly-detailed image that exposes intimate details of a person’s body to government agents. In 2009, the TSA began using WBI as a primary means of screening passengers, deploying the scanners at airports throughout the country, but without the support of any legislation or agency regulation.
In May 2009, The Rutherford Institute and 30 other organizations sent a letter to the Department of Homeland Security (DHS) demanding the DHS implement rulemaking procedures in accordance with the Administrative Procedures Act (APA), which requires the agency to give formal notice to the public of proposed actions and an opportunity to comment on the proposed action, in connection with the deployment of WBI scanners. When the TSA failed to notify the public of its decision to deploy the scanners or ask for public comments on use of the use of WBI technology as required by federal law, a lawsuit was brought alleging that this failure violated the APA.
In July 2011, the U.S. Court of Appeals for the District of Columbia ruled that the TSA’s implementation of WBI scanners without conducting rulemaking proceedings did violate federal law and ordered the agency to begin such proceedings. When the TSA failed to issue a proposed rule for over a year, the matter returned to the court, which directed that the TSA issue a proposed rule on WBI scanners by March 2013. The TSA issued its rule on March 3, 2016, but CEI and The Rutherford Institute filed a challenge asserting the rule is arbitrary and capricious because TSA failed to consider that WBI will cause more people to travel on highways, a riskier form of transportation, causing more deaths than use of WBI would save.