TSA’s Body Scanner Shuffle Continues, Agency Still Flouts The Law On Body Scanners

A great deal of news coverage today has been given to the Transportation Security Administration’s (TSA) decision to remove backscatter X-ray strip-search machines from U.S. airports and to replace them with millimeter wave full-body scanners, with many outlets implying that this is somehow a major win for travelers and those concerned about effective air security and privacy rights. This analysis, however, ignores the bigger underlying issues, as well as recent TSA policy.

This shuffle actually began in October of last year, when the TSA announced it would begin replacing backscatter machines with millimeter wave machines, which run on software capable of producing “gingerbread man” depictions of customers rather than nude images. Then a subcommittee of the House Transportation and Infrastructure Committee recognized that this shuffle failed to address core criticisms of body scanners broadly and held a hearing on the matter in November. What happened today is that the TSA is ending its contract with OSI (parent of Rapiscan Systems), manufacturer of the original whole-body scanner, because OSI was unable to meet its deadline to come up with software capable of generating the newly required “gingerbread man” passenger depictions through its backscatter X-ray machines.

It is important to keep in mind that this technology was originally developed and marketed for the purpose of protecting high-security environments, such as prisons and sensitive government installations. It was only after the U.S. was swept by a wave of irrational paranoia following the September 11 terrorist attacks that anyone seriously considered putting whole-body scanners in airports — and treating air travelers like prisoners.

The core issues that TSA has repeatedly failed to address began with TSA’s flouting of the law that required them to conduct a notice-and-comment rulemaking under the Administrative Procedure Act. Public and expert comments were never solicited and never taken into account before the TSA began purchasing and deploying these machines. It remains to be seen if they are at all effective in reducing risks to air traveler safety, let alone if these potential risk reductions justify the privacy-invading airport security policies that the United States foolishly adopted after 9/11.

The Electronic Privacy Information Center (EPIC) filed suit against the TSA’s illegal deployment of whole-body scanners. A court later ordered that the agency was in fact in violation of the Administrative Procedure Act and that it must open the required notice-and-comment rulemaking proceeding. A year after the court’s order, the TSA still had not complied. EPIC petitioned for a writ of mandamus in an attempt to force the agency to promptly begin the proceeding they are legally required to conduct. The Competitive Enterprise Institute led a diverse coalition supporting EPIC’s petition, filing an amicus brief on the coalition’s behalf. The court rejected EPIC’s mandamus petition, but in doing so effectively set a timetable for the TSA to begin its legally required rulemaking proceeding. The TSA is obliged to announce the proceeding no later than the end of March.

In August, former American Airlines Chairman and CEO Robert L. Crandall and I coauthored an op-ed explaining why the TSA’s use of scanners is both illegal and likely just another cog in the federal government’s growing apparatus of counterproductive aviation security policies. For instance, due to nonsensical and offensive post-9/11 airport security theater, many short-haul travelers have abandoned flying and taken to the far more dangerous roads. Three Cornell University economists have estimated that 500 additional annual road deaths can be attributed to this phenomenon. Have that TSA’s porn-and-grope airport security policies prevented more than a full 747 of airline terrorism casualties every year? I find this highly unlikely given the rarity of terrorism, and especially air terrorism.

What is the takeaway here? While it is true that the millimeter wave scanners coupled with the “gingerbread man” software are less intrusive than the backscatter X-ray machines they are replacing, the underlying problems with whole-body imaging such as the lack of sound, risk- and cost-based security policy and the TSA’s continued lawless behavior remain unaffected.