Federal Appeals Court Rules on TSA Body Scanners

The D.C. Circuit Court of Appeals today ruled (opinion here) that TSA's body scanners at airports were illegally implemented . But it also refused to order their suspension, directing the Agency only ".. promptly to proceed in a manner consistent with this opinion."

The D.C. Circuit Court of Appeals in Washington, D.C., rejected arguments from the Obama administration that the TSA was exempt from laws requiring federal agencies to first notify the public and seek comments.

"It is clear that by producing an image of the unclothed passenger, (a full-body) scanner intrudes upon his or her personal privacy in a way a magnetometer does not," wrote Judge Douglas Ginsburg for the three-judge panel.

The Court rejected constitutional arguments against the use of the body scanners, including a 4th Amendment challenge. [More...]

The petitioners argue that using AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives,” the appeals court noted. “As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an ‘administrative search’ because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.”

The court said that, whether an administrative search is unreasonable, is a balancing test on how much it intrudes upon an individual’s privacy, and how much that intrusion is needed for the promotion of “legitimate” government interests. “That balance clearly favors the government here,” the court ruled 3-0.

The case is EPIC v. the Department of Homeland Security, Case No. 10-1157 (D.C. Cir. filed July 2, 2010). You can read the legal arguments and documents here.EPIC says its "core assertion" was:

"[T]he TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers." EPIC asserts that the federal agency's controversial program violates the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment.

The Court today accepted only the Administrative Procedures Act Challenge.

Here is what TSA says is shown on the monitors by its Millimeter Wave and Backscatter Unit, which are the two types of AIT employed. Here is how the TSA says it protects your privacy.

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  • Display: Sort:
    No part of the civilian government (5.00 / 0) (#1)
    by jeffinalabama on Fri Jul 15, 2011 at 03:46:07 PM EST
    should be exempt from any part of the law. Including those folks up on the hill.

    I'm troubled more by this term 'administrative search.'

    If it's just a APA violation (none / 0) (#2)
    by andgarden on Fri Jul 15, 2011 at 03:54:57 PM EST
    the TSA can go back and try again. It will be an interesting opinion to read.

    Yup, not only is it a decision (5.00 / 1) (#4)
    by andgarden on Fri Jul 15, 2011 at 08:23:53 PM EST
    on APA, grounds, but it doesn't even vacate the defective order; instead, it remands to the agency. I think there's a strong argument that courts aren't permitted to simply remand under the APA.

    has anyone addressed (none / 0) (#3)
    by The Addams Family on Fri Jul 15, 2011 at 04:10:24 PM EST
    the agency's faulty calibration of these devices?