Court Rules against Government in TSA Body Scanner Case

Earlier today, the U.S. Court of Appeals for the D.C. Circuit ruled against the government in CEI’s challenge to the Transportation Security Administration’s (TSA) illegal body scanner policy. CEI, joined by the National Center for Transgender Equality and the Rutherford Institute, filed a mandamus petition in July asking the court to compel the TSA to produce its final rule on body scanners within 90 days.

When the TSA began deploying body scanners as the primary screening method back in 2009, it failed to conduct a notice-and-comment rulemaking as required by the Administrative Procedure Act (APA). In 2010, the Electronic Privacy Information Center (EPIC) filed a lawsuit alleging, among other things, that the TSA was in violation of the APA. In July 2011, this same panel on the D.C. Circuit ruled in favor of EPIC and ordered the TSA to “promptly” complete the required rulemaking it should have completed before deploying the machines. Unfortunately, the TSA has still yet to produce the required final rule, which is what motivated this latest legal action.

After years of the TSA thumbing its collective nose at the court order, the D.C. Circuit today ordered the TSA to produce a final rule schedule within 30 days. We see this as an important victory for both the rule of law and the traveling public.

Harper Jean Tobin, director of policy for petitioner National Center for Transgender Equality, said in response to the ruling:

We’re glad the court is holding the TSA to its mandate to follow the law. We hope TSA will listen to the thousands who commented on their proposed rule and replace invasive body scanners with simple, sensible screening.

John W. Whitehead, president of petitioner The Rutherford Institute, said:

“We the people” have not done the best job of holding our representatives accountable or standing up for our rights. Something as invasive as these whole body imaging scanners certainly shouldn’t be forced on the American public without the absolute assurance that it will not harm our health or undermine our liberties. At a minimum, the TSA should be required to establish rules governing the use and deployment of these scanners and have those regulations vetted by the public.

View the court’s order here.

Read an op-ed on the case I coauthored with Tobin and Whitehead here.

View the petition from CEI et al. here.

View CEI’s 2013 comments to TSA on its proposed body scanner rule here.

See a timeline of important events that led to this decision here.

Additional court documents can be found here.