Good and Bad News For TSA Use of Scanners

Good news and bad news for TSA’s use of advanced imaging technology scanners in a recent appeals court decision. The court sends TSA back to the drawing board to comply with the Administrative Procedures Act notice and comment requirement.

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)



About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.