A federal appeals court in Washington today said the Transportation Security Administration failed to allow for public comment before the agency's decision to switch from magnetometers to advanced imaging technology to screen passengers.
The Electronic Privacy Information Center challenged the transportation agency's rulemaking, saying the agency failed to provide notice and allow for comment before the TSA adopted what critics call an invasive and unconstitutional scan of a person's body.
A unanimous three-judge panel today said the plaintiffs' constitutional and statutory challenges to the new screening method are not persuasive. The body scan screening, the court said, is lawful. But the court said it was sending the dispute back to the agency for further proceedings.
“[M]uch public concern and media coverage have been focused upon issues of privacy, safety, and efficacy, each of which no doubt would have been the subject of many comments had the TSA seen fit to solicit comments upon a proposal to use [advanced imaging technology] for primary screening,” the court said.
Judge Douglas Ginsburg, writing for the panel, said none of the agency’s exceptions justifies its failure to give notice and receive comment on the change in the rule. The change, the court said, was “not merely interpretive, procedural, or a general statement of policy.”
The panel, which included judges Karen LeCraft Henderson and David Tatel, remanded the rule to the agency but did not vacate it. The panel judges said the TSA has an “obvious need” to continue airport security operations without interruption. Also, the court said, the constitutional and statutory challenges of the rule were not persuasive.
The appeals court noted passengers have complained about the pat-down alternative to the body scan, calling it “unnecessarily aggressive.”
The TSA, the court said, has taken steps to protect passenger privacy. The scanner image obscures facial features, and the image is deleted, the court said, after the passenger has been cleared. TSA agents, the court said, are forbidden to bring cell phones and cameras into a secure viewing room.
Marc Rotenberg of the Electronic Privacy Information Center argued in the D.C. Circuit for the plaintiffs. Rotenberg called the court's ruling a "very good decision with far-reaching implications."
Rotenberg said in a statement that the TSA "is now subject to the same rules as other government agencies that help ensure transparency and accountability. Many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law."
The appeals court left open the possibility that the TSA, on remand, will use the "good faith" exception in not employing notice and comment. We have no occasion to express a view upon this possibility other than to note we do not reach it," the court said.
The Justice Department’s Beth Brinkmann, one of the department’s top appellate lawyers, argued for the TSA. DOJ declined to comment on the ruling today.
Updated 2:06 p.m.