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TSA Flouts Law With Vague Rule on Body Scanners

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TSA Flouts Law With Vague Rule on Body Scanners

CEI Files Comments Criticizing Agency's Failure to Comply With Court Order

WASHINGTON, D.C., June 25, 2013 — Yesterday, the Competitive Enterprise Institute (CEI) and Robert L. Crandall, former chairman and CEO of AMR and American Airlines, submitted joint comments to the Transportation Security Administration (TSA) regarding the agency’s deployment of whole-body imaging scanners in airports. The comment letter criticized the TSA’s failure to comply with the D.C. Circuit’s order to produce a legislative rule and conduct a legitimate cost-benefit analysis and risk assessment.

“TSA proposes a vague rule that does not notify passengers of their rights and obligations, as required under the Administrative Procedure Act and the D.C. Circuit’s order,” said Marc Scribner, CEI Fellow in Land-use and Transportation Studies.

This regulatory proceeding is the result of a lawsuit filed by the Electronic Privacy Information Center (EPIC). In July 2011, the D.C. Circuit found that the TSA failed to conduct a notice-and-comment rulemaking proceeding before deploying whole-body imaging scanners, as required under the Administrative Procedure Act. In July 2012, the TSA had still not complied, leading EPIC to file a petition to enforce the court’s mandate. This action was joined by CEI, Crandall, Electronic Frontier Foundation, and other civil liberties groups.

“The TSA’s proposed rule flouts the D.C. Circuit’s clear mandate that the agency abide by the rule of law,” said Ryan Radia, Associate Director of CEI’s Center for Technology and Innovation. “Worse, the TSA’s Notice of Proposed Rulemaking gives members of the public zero meaningful notice as to which screening technologies they might be subjected when they travel.”

In addition to the TSA’s flouting of the law, the agency’s cost estimates for whole-body scanners are far too low, contradicting a 2012 Congressional Research Service study. Furthermore, the TSA claims it has conducted a risk assessment—but that the results are classified.

“The cost estimates imply lower or slower rollout, which would greatly reduce any potential effectiveness of whole-body scanners in stopping a terrorist with body-borne explosives,” said Scribner. “But the failure to release the results of the risk assessment is deeply troubling. While there are details related to specific threats and security protocol that can be legitimately redacted for national security purposes, there is absolutely no reason to withhold the study in its entirety. The public deserves to know if these costly scanners are at all effective in reducing the risk of airliner bombings.”

Due to the failure of the TSA to comply with the D.C. Circuit’s order, CEI and Crandall recommend that TSA reverse its deployment of whole-body imaging scanners and adopt regulatory alternative 3, whereby Walk Through Metal Detectors remain the primary passenger screening technology, augmented by Explosives Trace Detection. Until TSA is able to show that the benefits of whole-body imaging exceed its costs, alternative 3 is the only prudent option.

>> Read the full comments here.