The legal battle over the Transportation Security Administration’s installation of Advanced Imaging Technology – its “virtual strip search” machines – in airports has gone on for nearly a decade, and it’s focused mostly on privacy rights.
The feds use an X-ray type technology designed to reveal whether an airline passenger is carrying a weapon or another banned item underneath clothing.
But there have been numerous lawsuits over the images the machines create – initially an essentially nude rendering of the passenger – and how the images were handled. The agency said it altered its software so that the images now render a “stick figure” that doesn’t reveal intimate details.
But now there’s a lawsuit raising another claim: The machines are responsible for hundreds of deaths per year.
The lawsuit was filed in the District of Columbia Court of Appeals by the Competitive Enterprise Institute and the Rutherford Institute against the Department of Transportation and the TSA.
The suit is being pursued in conjunction with a similar case by the Electronic Frontier Foundation.
When the TSA began installing the machines in 2007, the government failed to follow the Administrative Procedure Act’s requirement that it propose and adopt standards. Consequently, formal complaints and challenges to the TSA program were delayed.
Now, the standards finally have been formalized, and they allow the use of “a device … that creates a visual image of an individual showing the surface of the skin.”
“TSA characterized AIT as reducing the need for pat-downs, and stated that privacy concerns regarding body scanners’ production of naked body images had been eliminated through new software that produced only a ‘generic outline’ of a passenger’s body,” the new lawsuit explains.
TSA noted the public opposition and “conceded” that some travelers are limiting airline travel as much as possible because of the screening demands.
“And it noted the argument of some individuals and organizations that, given the greater risks of driving compared to flying, this could raise a safety issue – ‘some estimated as many as 500 additional deaths per year,'” the new complaint says.
However, the TSA dismissed as negligible any such impact.
That creates an issue, the lawsuit contends.
“Comments from both analysts and private individuals squarely presented TSA with this issue. Many commenters pointed out that they had already reduced their air travel in favor of driving, for such reasons as privacy and airport screening hassles. Nonetheless, the agency summarily dismissed this as insignificant.
“But the agency’s own break-even analysis for the alleged life-saving potential of AIT demonstrates, the risks raised by a shift from planes to cars are at least as large, in magnitude, as the projected benefits of AIT. The agency cannot base its decision on one side of the equation while ignoring the other.”
The lawsuit demands that the rule be returned to the agency for further review.
“‘We the people’ have not done the best job of holding our representatives accountable or standing up for our rights,” said John W. Whitehead, president of The Rutherford Institute and author of “Battlefield America: The War on the American People.”
“However, something as expensive, invasive and seemingly ineffective as these scanners certainly shouldn’t be foisted on an unsuspecting American populace without the absolute assurance that it will not harm our health or undermine our liberties.”
The scanner became the primary means of screening passengers in 2009, even though there was no legislation or regulation allowing it.
The court cases ensued, and even though a judge ordered the government in 2011 to adopt standards, the TSA complied only this year.
Now, the complaint is that the TSA is refusing to include in its analysis the estimation that hundreds of people will die each year because the invasive scanning will cause them to travel by road instead of by air.
It was the TSA itself that estimated the scanning would result in as many as 500 deaths per year.
The complaint argues that not only does TSA not contest the estimate, it verified the premise in an analysis of the impact of the 9/11 attacks that showed travelers chose road trips rather that air travel.
“TSA here is ignoring the scores of comments from people who have switched from flying to driving,” the complaint said. “The record contains clear evidence that AIT was causing a sizable number of people to shift from flying to driving – a fact that TSA itself conceded.”
The estimate of the scanners’ impact cited in the complaint comes from the 1.5 percent of all commenters who said they would opt to drive rather than fly. That would be 12.2 million fewer enplanements each year, and studies reveal “a decrease of 1 million enplanements leads to an increase of 15 driving-related fatalities.”
“Of course, the commenters who participated in TSA’s rulemaking may not be representative of airline passengers overall. However, even if they are overrepresented by a factor of eight, this still would result in 24 road-related deaths, a figure that is larger than the 20 to 21 lives claimed by TSA in its break-even analysis,” the lawsuit said.
“Perhaps the best evidence against TSA’s characterizations of AIT is this fact – AIT scanners are conspicuously absent from the two expedited screening programs that TSA has instituted for certain categories of passengers,” the lawsuit said.
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.”