CEI Sues TSA For Violating Federal Law With Body Scanners


The Competitive Enterprise Institute (CEI) filed a lawsuit today against the Transportation Security Administration (TSA) for violating the law by deploying body scanners before following the required rulemaking process. The lawsuit aims to hold the TSA accountable to a court’s ruling that it had violated the law by failing to follow basic required administrative procedures, including allowing the public to comment on their screening proposal. CEI is joined as co-petitioners by the National Center for Transgender Equality (NCTE) and The Rutherford Institute, as well as two CEI employees in their capacity as private individuals.

CEI Fellow and co-petitioner Marc Scribner said,

“For four years the TSA has flouted the court’s order, preventing the public and outside experts from scrutinizing their actions as required under the law. This lawsuit aims to enforce that court decision and bring much needed accountability to an agency plagued by lawlessness.

“As if the violation of the law wasn’t enough, we have strong reason to believe the body scanners are ineffective in detecting weapons and explosives. Leaked results from a classified Department of Homeland Security Office of Inspector General audit revealed that TSA screening practices, in which the body scanners play a major role, failed to detect threats 96 percent of the time. This adds insult to injury from an agency that purports to protect the traveling public by way of highly invasive, costly, and illegal screening technologies.”

A federal appeals court ruled on July 15, 2011, that the TSA was legally required to publicly develop its body scanner regulation under the Administrative Procedure Act. A year after the 2011 ruling, the same court noted that the TSA had committed to quickly beginning this process. But as of today, the TSA has still not issued a final rule on body scanners. At the same time, TSA has greatly expanded its use of body scanners, even as doubts over their effectiveness grow.

Harper Jean Tobin, Director of Policy for co-petitioner National Center for Transgender Equality, said,

“As long as TSA relies on body scanners and prison-style pat-downs as its primary tools, there will be a cost to travelers’ privacy and questions about whether that cost is paying off. While there will be some cost to all travelers, anyone who is perceived as different or whose body is not typical will bear the brunt of it. The public deserves clear rules that address the effectiveness and the privacy impact of practices that affect millions of Americans every day.”

Constitutional attorney John W. Whitehead, President of co-petitioner The Rutherford Institute, said,

“Despite the massive invasion of privacy perpetrated by whole body scanners on millions of air travelers and a federal court order that the TSA issue a rule on their use, the government has refused to do so, thereby avoiding providing justifications or enforceable guidelines for their use. This is another example of the government employing surveillance technologies regardless of and outside of the limits of the law.”

CEI has filed a petition for writ of mandamus asking the D.C. Circuit Court to enforce its July 15, 2011, decision that found the TSA in violation of the Administrative Procedure Act and force the TSA to produce its required final rule on body scanners within 90 days. The lawsuit is brought on behalf of the officers and employees of the Competitive Enterprise Institute, the National Center for Transgender Equality, and The Rutherford Institute, as well as two CEI employees, Lawson Bader and Marc Scribner, as private individuals.

The petition can be found here.

CEI’s 2013 comments to the TSA on body scanners can be found here.

Read a 2012 op-ed by former American Airlines CEO Robert Crandall and CEI’s Marc Scribner discussing the lawlessness of the TSA’s body scanner program here.

About CEI:

The Competitive Enterprise Institute is a non-profit 501(c)(3) public policy organization dedicated to advancing the principles of limited government, free enterprise, and individual liberty. Our mission is to promote both freedom and fairness by making good policy good politics. We make the uncompromising case for economic freedom because we believe it is essential for entrepreneurship, innovation, and prosperity to flourish.

About NCTE:

National Center for Transgender Equality (NCTE) is a nonprofit organization dedicated to improving the lives of transgender people and their loved ones through education and advocacy. NCTE was founded in 2003 and is headquartered in Washington, D.C.

About The Rutherford Institute:

The Rutherford Institute, since its founding over thirty years ago, has emerged as one of the nation’s leading advocates of civil liberties and human rights, litigating in the courts and educating the public on a wide variety of issues affecting individual freedom in the United States and around the world. The Institute’s mission is twofold: to provide legal services in the defense of civil liberties and to educate the public on important issues affecting their constitutional freedoms.