Bipolar federal court slams body scans, praises TSA in one breath

The poor TSA. The agency got these futuristic scanners to play with — a geeky dystopian authority's dream — and everyone hates them for it. A federal judge, who today called the scanners a clear intrusion and agreed the technology was implemented illegally also offered words of praise that have everyone confused.

The Ruling

Let's just get one thing clear. The word around the Web right now is that this means that the TSA will have to stop using the scanners. This is incorrect. The lawsuit driving this ruling, filed last year by D.C.-based advocacy group Electronic Privacy Information Center (or EPIC), is in regards to the fact that the TSA did not go through the proper procedures before implementing its new all-seeing scanners. Judge Douglas Ginsburg and the D.C. Circuit Court of Appeals in Washington agrees.

What the TSA decided to skip was the Administrative Procedure Act, which includes an official "public comment" period. U.S. citizens would have been able to weigh in on the body scanning technology and the TSA would have had to, in turn, take those comments into account. Instead, the TSA rolled the scanners out in the name of freedom and anti-terrorism and all that good stuff, hoping to be exempt from the law as a part of the Department of Homeland security.

This ruling officially tells the TSA, no, the agency is not exempt.

Judge Says What?

Judge Ginsburg didn't mince words about the TSA's installation of body scanners, saying "it is clear that by producing an image of the unclothed passenger, an [body] scanner (sic) intrudes upon his or her personal privacy in a way a magnetometer does not..." A magnetometer being the metal detectors we're all used to.

His continuation, however, is quite the softball:

On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

A softball? Yes. Even after this ruling, this will remain a ridiculously gray area. Officially, folks going through an airport security line are allowed to opt out of a full-body scan. In practice, that's not always the case. Even if the TSA does respect your wish to opt out, the famous gropings are violation enough, and feel like a punishment besides.

You can read Judge Ginsburg opinion in its entirety by clicking this link (pdf).

What Happens Now

Will anything change after this? Well, we'll just have to see. According to EPIC president Marc Rotenberg, who also happens to be the lead counsel on the case, the TSA is "now subject to the same rules as other government agencies," and will now have to listen to the public and "take their views into account as a matter of law."

That means that the TSA may end up having to follow the stipulations of the Administrative Procedure Act if there are no appeals. If that happens, the TSA will be forced to implement improvements that make sense as dictated by the public, though I wouldn't expect to see the AIT scanners disappear any time soon.

The basic hope here is that, going forward, the TSA will officially be forced to respect the law and really allow passengers an opt out without the blurry rules, as well as make that option clear and public.

(Thanks to EPIC's Ginger McCall for fielding our questions while researching this article.)


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