Wednesday, August 3, 2011

The comment period on scanners in the UK

The ruling of the EPIC v DHS case was that the TSA should have, and now must, have a notice and comment period on the scanners.
However, the judges ruled that the TSA should have conducted a "notice-and-comment rulemaking" procedure before implementing their decision and remanded the matter to the TSA for further proceedings. Marc Rotenberg, the EPIC Executive Director, responded to the ruling by saying that "many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law".
In the UK, their airline security organization (the Department for Transport) did conduct such a comment period. Here's how it went:
Last week's ruling serves as a reminder that the AIT system is also in use across UK airports. In January 2010, the government announced a package of measures to enhance the protection of the travelling public following the failed Christmas Day plot, including the introduction of AIT full body scanners.
An interim code of practice was published by the Department for Transport to support the introduction of AIT scanners at Heathrow and Manchester airports and a consultation on the code was commenced on 29 March 2010. The purpose of the consultation was to seek the public's views on the interim code with a view to preparing the final code of practice.
Responses were made to the consultation by, amongst others, Liberty, the Equality and Human Rights Commission and the Islamic Human Rights Commission. Each organisation was concerned at the impact the implementation of the AIT scanners would have on a traveller's privacy. Unlike in the United States, if an individual is selected for body scanning in the UK, an alternative will not be offered.
This was emphasised in Liberty's response which said that
"the issue here is not a refusal to submit to a security search, but the disproportionate impact on some people's privacy…caused by the lack of an alternative means of being searched. While some may object to revealing these intimate details and may prefer this to be being physically touched, human rights concerns the dignity of individuals and, a majority-rules approach is not only inappropriate, it may also be unlawful."
The consultation on body-scanners in UK airports closed on 19 July 2010. Clear questions have been raised in response but no final code yet produced.
The UK installed the scanners. No alternatives were made available. Basically, comments were made, but no attempt was made to address them. But the author of this article is hopeful:
Perhaps the recent judgment in the US court of appeals will revive the issue on this side of the pond.
 I am not. I fully expect the TSA to continue to ignore our concerns.