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TSA flouts the law on body scanners

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By Robert L. Crandall and Marc Scribner
Saturday, Aug. 4, 2012, 8:54 p.m.

For more than five years, the Transportation Security Administration has been deploying full-body imaging scanners in our nation's airports. About 700 scanners have been deployed in nearly 190 airports nationwide.

While the agency keeps installing these devices, there are real doubts whether these are actually making anybody safer. Yet because TSA failed to solicit public comments about the scanners — in violation of federal law — the agency is flying blind.

In 2010, the Electronic Privacy Information Center sued the Department of Homeland Security, TSA's parent department, to compel TSA to solicit public and expert input. In July 2011, the D.C. Circuit Court of Appeals ordered TSA to “promptly” begin a rulemaking to allow for legally required public comments.

A year later, TSA has not even begun the process. The law empowers courts to compel agency action when it is “unreasonably delayed.”

TSA says it does not have the resources to begin this public comment process. But this supposed lack of capacity has not prevented TSA from opening new proceedings on far less important matters, adding many more body scanners at airports nationwide and launching the new PreCheck program for frequent fliers.

On July 17, EPIC petitioned the court to enforce its mandate. Two days later, the Competitive Enterprise Institute filed an amicus brief supporting EPIC's petition, along with the National Association of Airline Passengers, Electronic Frontier Foundation and six other organizations. This rulemaking is the only way to determine whether TSA's air travel security regime is worth its huge costs and adverse effects on the public's well-being.

Ohio State University professor John Mueller has done a thorough analysis of U.S. air travel security. He found that even assuming the scanners are capable of detecting body-borne explosives, the likelihood of a terrorist carrying out such an attack is so low that the massive annual cost of deploying and using these machines outweighs any security benefit.

Medical experts have raised concerns about repeatedly exposing frequent fliers to potentially harmful radiation. In addition, three Cornell University economists found that the agency's onerous screening rituals have led many people to abandon short-haul flights and take to the road instead. Yet the agency has still not allowed the public to comment on its most invasive — and unpopular — security measure to date.

This is unacceptable, especially as TSA continues deploying body scanners. Experience with “puffer” explosive detection machines shows how TSA's exuberance in adopting unproven screening technologies without consulting the public and independent experts can waste time and money and be unnecessarily intrusive. After spending $36 million purchasing the devices, TSA found them to be ineffective and removed them. They now sit in a Texas warehouse. That was a bargain compared with the $500 million TSA expects to spend on body scanners. The longer TSA delays in complying with the public comment requirement, the more likely it will continue to set bad security policy.

The court should promptly find in EPIC's favor and require TSA to open a rulemaking on these full-body imaging machines within 60 days. If the court fails to act, TSA will be able to continue to evade judicial review, leaving the public with no meaningful recourse.

Robert L. Crandall is former chairman and CEO of AMR and American Airlines. Marc Scribner is the land-use and transportation policy analyst at the Competitive Enterprise Institute.

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