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TSA Deserves a Lump of Coal

Last week, CEI filed its reply brief in our case against the Transportation Security Administration’s use of body scanners. To recap, CEI, the Rutherford Institute, and two CEI employees filed a lawsuit earlier this year challenging the agency’s final rule on airport body scanners. Our argument centers around the fact that the TSA’s widely unpopular body scanners lead many would-be air travelers to take to the much more dangerous highways instead, where some number of them die, and that the agency failed to consider this deadly modal substitution effect as required under federal law.

In our latest filing, we take the TSA to task for failing to meaningfully address our arguments:

TSA’s body scanner rule causes travel deaths by leading some passengers to choose to drive rather than fly. TSA totally avoids this issue. It is not because the agency assessed the number of passengers who might do so and found the fatality risk to be nonexistent. Nor is it because the agency determined that the risk is outweighed by the alleged life-saving benefits of scanners. Instead, TSA simply declares that the evidence on this risk is “anecdotal,” and thus can be disregarded.

In fact, the evidence cannot be so easily dismissed. As shown in CEI’s Opening Brief, when the comments in the record are analyzed, they demonstrate a serious fatality risk from this travel substitution. That risk, moreover, is amply confirmed by polling data in the record, some of it cited by TSA itself.

TSA’s analysis of this issue is no analysis at all, but rather is an arbitrarily illegal evasion. TSA’s rule should be remanded, and the agency ordered to undertake an honest evaluation of a question that it would, understandably, rather not confront.

The holiday season is when many non-frequent travelers are reminded of the indignities of TSA screening. “For our own good,” Americans are regularly subjected not only to ineffective and invasive body scanning, but physical assault as well. Just over a year ago, the TSA quietly updated its body scanner Privacy Impact Assessment. Until this PIA, the TSA always allowed passengers to opt-out of body scanner screening in favor of a pat-down. The December 2015 PIA stated that while the agency will still allow many to opt-out, “TSA will nonetheless mandate [body scanner] screening for some passengers as warranted by security considerations in order to safeguard transportation security.”

When the D.C. Circuit refused to prohibit the TSA’s use of body scanners in 2011, it “acknowledge[d] the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.”

So, one of the reasons the court allowed the TSA to continue using its body scanners despite finding the agency in violation of the Administrative Procedure Act was that “any passenger may opt-out of AIT screening in favor of a patdown.” As this is no longer the case and in light of the growing evidence of passenger opposition and deadly modal substitution that results, we wonder how the court would rule today.