Get our articles delivered in your inbox for free! Sign up here.
TSA got some good news and bad from an appeals court in a case challenging the use of AIT (advanced imaging technology) scanners in screening passengers at airports. (Electronic Privacy Information Center v. Department of Homeland Security, C.A.D.C. No. 10-1157, 7/15/11)
The good news is that the court found that the use of the AIT scanners does not violate the Fourth Amendment’s protection against unreasonable search and seizure. The court concludes that screening airplane passengers is an “administrative search” since the “primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.” (Opinion p. 16) The importance is that an administrative search does not require individualized suspicion. Therefore, whether it is “unreasonable” under the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” (pp. 16-17)
The court finds that the balance in the case of AIT screenings “clearly favors the Government.” (p. 17)
The bad news in this court decision for TSA is that the government will have to go back to the drawing board and re-issue the rules under which they ordered up the AIT screening because they violated the Administrative Procedures Act that requires notice and public comment. The court simply did not buy TSA’s vigorous arguments that the order for AIT scanning was not a “rule” within the meaning of the APA, but rather was a procedural rule (or, if you prefer, an interpretive rule, or how about a general statement of policy). (pp. 8-12)
The court labels as “absurd” the government’s notion that a passenger doesn’t have to go along with any of the “choices presented by the TSA when he arrives at the security checkpoint….” (p. 11)
Because TSA failed to persuade the court it was justified in failing to follow APA rulemaking procedures, the matter is remanded to the government to do it right. The court stops short of vacating the existing rule, however, since to do so would “severely disrupt an essential security operation….and the rule is…otherwise lawful….” (p. 12) The court does admonish TSA to act quickly to fix the problem.
TSA gave inkling as to what its next step will be. Apparently the agency asked the court to make clear that TSA would be justified in invoking the APA’s “good cause exception” to the rulemaking requirement. The court refused to include this in its order; however, watch for TSA to take this as its next step. (p. 12)
ElectronicPrivacyv.TSA10-1157-1318805
© 2012 FedSmith Inc. All rights reserved. This copyrighted article may not be reproduced without express written consent of FedSmith Inc.
comments powered by Disqus
