Dear Chairman Chaffetz and Ranking Member Cummings:
We are writing to you regarding the TSA’s recent claim that it can mandate whole body scanning for airline passengers.
We also write regarding the agency’s continued refusal to issue a final rule, setting out its legal authority to conduct airport screening. We are representative of leading civil liberties, human rights, and non-profit organizations, across the political spectrum. Many of us previously petitioned the DHS Secretary to conduct a public rulemaking on the use of airport body scanners after the agency sua sponte decided to make a pilot project into a national program of electronically strip searching airline travelers.
That petition provided the basis for the lawsuit, EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011), in which a federal appeals court held that the TSA had failed to conduct a public rulemaking as required by the Administrative Procedure Act.
The D.C. Circuit, relying on the government's representation, also concluded that there was no Fourth Amendment violation, because as Judge Ginsburg explained for the court, “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."
The Court ordered the agency to “act promptly” to conduct a public rulemaking. But the TSA has still not issued a final rule more than four years after the D.C. Circuit’s ruling. Now, incredibly, the agency is claiming new authority to require travelers to undergo whole body screening in blatant disregard of the opinion of the federal appellate court.
We urge you to convene a hearing as soon possible to assess the agency’s conduct. Already travelers within the United States are being subject to unlawful searches. This hearing is especially important because TSA orders are not currently subject to judicial review as are other government actions.
We also ask you to:
- Suspend funding for whole body scanners until the public rulemaking has been completed;
- Require the TSA to publish all de facto regulations including § 46110 orders;
- Require the TSA to evaluate the cost (including lost time to passengers) of screening procedures using whole body scanners; and
- Amend § 46110 to ensure that TSA orders are subject to judicial review as are other government actions.
Thank you for your consideration of our views. We would be pleased to work with you and your staff to help safeguard the privacy rights of travelers.