A federal court order from five years ago that told the Transportation Security Administration to develop rules for the use of body scanners in America’s airports will be followed – sometime next year.
That’s according to a new document just filed by the federal government in a case brought on behalf of a number of civil rights and privacy organizations.
In a new filing dated just days ago from Mark Stern and John Koppel of the U.S. Department of Justice, they wrote that “barring unexpected circumstances,” they expect the final rule will be published in the Federal Register by March 3, 2016.
They also advised the District of Columbia Circuit Court of Appeals that if there were further delays, they court would be notified.
In a terse note posted online, the Electronic Privacy Information Center, which has been working in the fight over the scanners and privacy concerns, pointed out this is “nearly five years after the D.C. Circuit Court of Appeals ordered the agency to ‘promptly’ solicit public comment on the controversial scanners.”
It continued, “In 2011, EPIC successfully challenged the TSA’s unlawful deployment of airport body scanners. Following EPIC’s lawsuit, backscatter X-ray devices were removed from U.S. airports. Still, the agency continues to ignore public comments that overwhelmingly favor less invasive security screenings.”
Those comments, as released by the government, show that Americans overwhelmingly blasted the TSA program as an invasion of privacy at best and voyeurism and sexual assault at the other end of the scale.
The issue was that the machines generated images of passengers’ bodies revealing even the most intimate details.
The fight erupted about six or seven years ago at the point the TSA began installing in American airports “whole-body imagers” that essentially subjected airline passengers to what critics described as “virtual strip searches.”
Also among those fighting the scanner program was the Rutherford Institute, which joined with several other organizations, including the Competitive Enterprise Institute, to bring a case over the technology, called Advanced Imaging Technology, which began appearing at airport security screening points in 2007.
The institute said the scanner “generates a highly-detailed image that exposes intimate details of a person’s body to government agents.”
Two years later, the TSA deployed the machines across the nation, even though there had been no congressional mandate or agency regulations.
But dozens of groups wrote to the Department of Homeland Security insisting that government rule-making procedures needed to be followed, under the Administrative Procedures Act.
The rules required that the public be allowed to sound off on the plan.
The TSA kept the machines and ignored the rule-making requirements, prompting a lawsuit.
According to Rutherford, the U.S. Court of Appeals for the District of Columbia decided in 2011 the agency was required to do the rule-making process. The court then ordered the TSA to issue the proposed rule by March 2013, but again nothing happened.
That left the issue in court once again.
“We are the unwitting victims of a system so corrupt that those who stand up for the rule of law and aspire to transparency in government are in the minority. This corruption is so vast it spans all branches of government, from the power-hungry agencies under the executive branch and the corporate puppets within the legislative branch to a judiciary that is, more often tha[n] not, elitist and biased toward government entities and corporations,” John Whitehead, president of the Rutherford Institute, said as the fight progressed.
“The whole body imaging scanners are a perfect example of this collusion between corporate lobbyists and government officials. ‘We the people’ have not done the best job of holding our representatives accountable or standing up for our rights. Something as invasive as these scanners certainly shouldn’t be forced on the American public without the absolute assurance that it will not harm our health or undermine our liberties. At a minimum, the TSA should be required to establish rules governing the use and deployment of these scanners and have those regulations vetted by the public.”
The TSA was criticized in 2010 by Sen. Rand Paul, R-Ky., for its “enhanced pat-downs” which accompanied the scanner image controversy, and WND reported extensively on the controversy when judges threw out challenges against the agency based on a “secret order” issued by the TSA.
In one of the court cases challenging the scanners, District Court Judge Henry H. Kennedy Jr. cited a “secret order” issued by the TSA as the basis for dismissing the case.
At one point, the Libertarian Party of Florida formally asked sheriffs across the state to start arresting TSA agents in the 67 counties for sexual battery.
“As sheriff, you have the absolute duty to enforce the law uniformly and without prejudice. You are, at best, engaged in selective enforcement by choosing to further ignore these flagrant violations of federal and state law. At worst, you are complicit,” said a message to the 67 sheriffs from the party, signed by chairman Adrian Wyllie.
Paul’s criticism of the process was blunt.
“The press reports are horrifying: 95 year-old women humiliated; children molested; disabled people abused; men and women subjected to unwarranted groping and touching of their most private areas; involuntary radiation exposure,” he wrote. “If the perpetrators were a gang of criminals, their headquarters would be raided by SWAT teams and armed federal agents. Unfortunately, in this case the perpetrators are armed federal agents. This is the sorry situation 10 years after the creation of the Transportation Security Administration.”