Dec 23, 2011
The Department of Homeland Security was court ordered to gain public comment on the body scanners five months ago but to date, has not complied. EPIC, the Electronic Privacy Foundation filed papers today, for the second time, seeking compliance from the DHS.
The DHS in this matter as well as others, seems to think that the agency is above the laws of this country.
From the Electronic Privacy Coalition newsletter;
 EPIC to Court: Force DHS Compliance with Public Comment Mandate
EPIC has filed papers [on Dec 32, 2011] in federal court, seeking, for the second time this year, to enforce an order that requires the Department of Homeland
Security to begin a rule making on the controversial airport body
As a result of EPIC’s ongoing lawsuit against DHS,
- the DC Circuit Court of Appeals ruled that the agency violated federal law by installing body scanners as primary screening devices without first soliciting public comment.
- The Court also held that travelers had a right to opt-out of the airport body scanners.
More than two years ago EPIC and a coalition of civil liberties and
civil rights organizations petitioned Secretary of Homeland Security
Janet Napolitano to provide the public the opportunity to comment on
Through Freedom of Information Act litigation, EPIC had already obtained
hundreds of traveler complaints, including instances when travelers
said that TSA officials retaliated against them for choosing not to go
through the body scanners. Privacy and traveler advocates, health
and security experts, as well as airline pilots have also raised questions
about the screening procedures.
In July 2011, the Court ordered Homeland Security to “promptly” seek
public comment, but the agency has failed to respond. The Court’s
decision held that “the TSA has not justified its failure to initiate
notice-and-comment rulemaking before announcing it would use AIT
scanners for primary screening.”
The appeals court’s decision states that “None of the exceptions urged
by the TSA justifies its failure to give notice of and receive comment
upon such a rule, which is legislative and not merely interpretive,
procedural, or a general statement of policy”, adding that “Few, if any
regulatory procedures impose directly and significantly upon so manymembers of the public.”
In the motion to enforce, EPIC highlighted a recent report by
ProPublica, which described the DHS’s failure to take account of
radiation risks posed by body scanners. EPIC also noted the European
Commission’s recent decision to limit body scanner use within the EU.
The European Commission specifically banned the use of backscatter
x-ray devices in the European airports because of public health
concerns. Meanwhile, DHS is lobbying Congress to increase the use of
these devices in the United States.
EPIC: Motion to Enforce Order on DHS (Dec. 23, 2011)
EPIC v. DHS: Full Body Scanner Radiation Risks
DC Circuit Court: Opinion on EPIC v. DHS (July 15, 2011)
ProPublica: Series on Body Scanner Radiation
European Commission: Press Release on EU Scanners (Nov. 14, 2011)
EPIC: EPIC v. DHS (Suspension of Body Scanners)