CEI Sues over TSA’s Body Scanners

Today, CEI, The Rutherford Institute, CEI Vice President Iain Murray, and yours truly filed a lawsuit against the Department of Homeland Security in the U.S. Court of Appeals for the D.C. Circuit challenging the Transportation Security Administration’s (TSA) final rule on body scanners, which was published in March.

CEI et al. argue that TSA’s final rule fails to consider one important factor related to the deployment body scanners: a potential increase in highway injuries and deaths. If that sounds crazy, let me explain. Past research suggests that post-9/11 airport security policies were so invasive that a number of would-be air travelers decided to drive instead. Given the fact that auto travel is far more dangerous than air travel, three Cornell University economists found that TSA’s invasive, time-consuming airport screening policies resulted in about 500 additional highway fatalities annually in the years following 9/11—more than a fully loaded 747 per year.

Professors John Mueller and Mark Stewart have repeatedly highlighted this major omission from TSA’s benefit-cost and risk analyses, both in their excellent book Terror, Security, and Money, and in formal comments to TSA coauthored with the Cato Institute’s Jim Harper on the 2013 proposed rule on body scanners. CEI and former American Airlines CEO Bob Crandall made similar points in joint comments submitted to TSA.

Yet, in the final rule, TSA failed to consider the human toll of their invasive policies with respect to the resulting air-highway modal substitution, which anyone should understand to be an important factor. Thus, we argue the rule is arbitrary, capricious, and contrary to law, and should be enjoined and set aside under the Administrative Procedure Act.

This is the latest installment in the years-long legal saga over this rogue agency’s illegal deployment of airport body scanners. CEI’s case page will be updated as the litigation proceeds. Below is a timeline of important events that led to this case:

June 2008

The Transportation Security Administration (TSA), an agency of the Department of Homeland Security (DHS), installs body scanning machines in 10 major U.S. commercial airports. These scanners, which can see through clothing, are supposed to identify security threats capable of evading metal detectors. In coming years, TSA installs hundreds of these body scanners at airports nationwide.

May 31, 2009

A coalition of public interest groups, led by the Electronic Privacy Information Center (EPIC), submits a petition pursuant to 5 U.S.C. § 553(e) asking DHS Secretary Janet Napolitano to initiate a formal rulemaking process to receive public input on TSA’s use of body scanners to screen passengers at commercial airports.

June 19, 2009

TSA’s Acting Administrator responds to the petition with a short letter discussing how and why TSA uses body scanners. The letter does not address to the request for a rulemaking.

April 21, 2010

The EPIC-led coalition submits another Section 553(e) petition, requesting that TSA immediately suspend its “purchase, deployment, and operation” of body scanners, arguing that the use of the scanners violates the APA, RFRA, the Privacy Act, and the Fourth Amendment.

May 28, 2010

TSA’s Chief Counsel responds to the petition with a defense of TSA’s use of body scanners, addressing several of the claims raised by the EPIC-led coalition. TSA does not suspend the program or initiate a rulemaking.

July 2, 2010

EPIC, Chip Pitts, and Bruce Schneier file a petition for review with the Court of Appeals for the D.C. Circuit, pursuant to 49 U.S.C. § 46110, asking the court to remedy TSA’s failure to act on the 2009 petition, its refusal to process the 2010 petition, and ongoing requirement that airport checkpoints use body scanners for primary screening.

Petitioners argue that TSA’s use of body scanners (1) violates the APA because the agency ignored EPIC’s petition and deviated from its statutory mandate; (2) violates the Fourth Amendment by unreasonably searching passengers; (3) violates the Privacy Act by collecting personally identifiable information without an accompanying “system of records notice”; and (4) violates the Religious Freedom Restoration Act by substantially burdening Muslims’ belief in modesty when less restrictive means of screening are available.

July 15, 2011

In EPIC v. DHS653 F.3d 1 (D.C. Cir. 2011) (no. 10-1157), the court partially granted the petition for review. Judge Ginsburg wrote the opinion, joined by Judges Henderson and Tatel. The court rejected petitioners’ Privacy Act and RFRA claims, and their Fourth Amendment claim. However, the court agreed with the petitioners that the APA compels TSA to conduct notice-and-comment rulemaking regarding its use of body scanners, rejecting TSA’s argument that its body scanner regime was merely a procedural rule, interpretive rule, or general statement of policy. The court remanded the “rule” to the TSA, instructing the agency to “promptly proceed in a manner consistent with [the court’s] opinion.”

July 17, 2012

A year after the D.C. Circuit ordered TSA to conduct an APA rulemaking, the agency had taken no action. EPIC filed a petition for a writ of mandamus asking the court to enforce its earlier mandate.

July 19, 2012

The Competitive Enterprise Institute, joined by former American Airlines CEO Robert Crandall and seven other public interest groups, filed an amicus brief in support of EPIC’s petition for a writ of mandamus.

September 25, 2012

In a per curiam order, the D.C. Circuit denies the petition for a writ of mandamus, but notes that it “expect[s] that the NPRM will be published before the end of March 2013.” In re Elec. Privacy Info. Ctr., No. 12-1307 (D.C. Cir. Sept. 25, 2012) (per curiam).

March 26, 2013

A few days before the court-imposed deadline of “the end of March 2013,” TSA publishes a notice of proposed rulemaking, proposing to add two sentences to 49 C.F.R. § 1540.107 to note that the agency may use “advanced imaging technology,” defined as “screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.”

June 24, 2013

CEI and Robert Crandall file comments with TSA in its proceeding regarding the use of body scanners. We argue that TSA’s proposed rule falls far short of what the APA requires, as it does not give passengers fair notice of their airport screening obligations, and that the agency has failed to justify its proposed rule on risk-based, cost-benefit grounds.

July 15, 2015

CEI, National Center for Transgender Equality, The Rutherford Institute, Lawson Bader, and Marc Scribner file a petition for writ of mandamus asking the D.C. Circuit to enforce its 2011 mandate and order the TSA to produce a final rule within 90 days.

October 23, 2015

The D.C. Circuit orders the TSA to produce “a schedule for the expeditious issuance of a final rule within a reasonable time.”

November 23, 2015

The TSA states in its response to the D.C. Circuit’s October order that “the final rule will be published in the Federal Register by March 3, 2016.”

March 3, 2016

The TSA publishes its final rule in the Federal Register.

May 2, 2016

CEI, The Rutherford Institute, and CEI employees Iain Murray and Marc Scribner file a petition for review of the final rule in the D.C. Circuit.