Comment submitted (finally!)

Here is the comment that I just submitted to the feds (better late than never!). (Disclaimer: It's not my finest work.):

I would like to direct my comments for Docket No. TSA-2013-0004 towards two areas of the AIT rule. First, I object on privacy grounds, and, second, I object on safety grounds to the implementation of AIT screening. My recommendation is that the AIT screening program be stopped immediately.

In part IB of the NPRM (Summary of Major Provisions), it says, “AIT currently provides the best available opportunity to detect non-metallic anomalies concealed under clothing without touching the passenger…” followed by, “TSA implemented stringent safeguards to protect the privacy of passengers undergoing AIT screening when AIT units were initially deployed and enhanced privacy further by upgrading it millimeter wave AIT units with ATR software.” As a modest woman who also chooses to raise her children to be modest, I strongly feel that these two statements are contradictory and can not be reconciled. If you are viewing anything under my clothing, or the clothing of my daughter or son, then you are not protecting my privacy. It does not matter to me that the area under my clothing is not seen directly with the naked eye of an individual that I can see, or if a machine is viewing the area under my clothing and transmitting that image either to an individual in another room or to a software program that interprets the image.

This goes to a very fundamental aspect of humanity and, in particular, to a prevalent strain of modesty in America culture bridging across people of various faiths, ethnicities, and backgrounds. Humans wear clothes not only for decorative reasons, but also, and, in some cases, especially, in order to be modest. Anything under the clothes is intentionally hidden, not intended to be viewed by man or machine without express consent (that is, uncoerced undressing). It is, in practice, impossible to take protect passenger privacy while simultaneously forcibly viewing anything that is under passengers’ clothes.

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.

Cato on EPIC v DHS

I was skeptical based on the title of this article (Strip-Search Machine: A Loss Seeds A Win), but it's a good, honest analysis of what happened and also links to this excellent debate on Reason years ago.

The TSA is listening? Don't make me laugh!

A representative of Flyers Rights claims that the TSA is listening to complaints by flyers and pushed more formally by some passengers rights organizations. Not only that, but recent steps like raising puppies, using cartoon images, starting Trusted Traveler, promising to retest the scanners, and getting a slap on the wrist are signs that we've almost won (okay, she doesn't say that we've almost won, but her picture is way too rosy):

After an extended period of inappropriate, knee-jerk response, dealing with real security threats by providing security theater, the TSA is slowly responding to public outcry. Widespread discontent with the TSA's new measures was focused through the efforts of consumer advocacy groups such as FlyersRights.org, Ralph Nader's Center for Study of Responsive Law, and Marc Rotenberg's Electronic Privacy Information Center, and our efforts are beginning to bear fruits.

...The only consistency in TSA's application of its policies is their too-frequently random application. However, our other concerns are making headway.

...Those important issues aside, FlyersRights and our allies strongly object to our government's trampling of our Constitution. Even here, where the Department of Homeland Security has proven the most tone-deaf, we see progress.

 Here's my point-by-point rebuttal:

• The dogs are not going to replace the scanners. The number of scanners to be installed is scheduled to double, with nearly every passenger screened with them within a couple of years. Furthermore, dogs are still a rights violation and are being used because they can detect drugs. Carrying and doing drugs is a victimless crime and the Drug War has a deadly and expensive track-record. Finally, dogs are not perfect either, but cops act as though they are. This may mean that innocent people will be more likely to be wrongfully detained.
• The "retest" of scanner radiation is not addressing the underlying problems that scientists have raised about the scanners. This is just a technician going around checking to make sure that the machines do what the manufacturer says they do and using an SOP that the manufacturer created.
• The cartoon images change to scanners is no less a rights violation. You are still having a naked photograph taken. They've just added software that hides the naked image from view and shows a stick figure. They still are collecting the data of what you look like naked without any warrant.
• Trusted Traveler is bad.
• EPIC v DHS, while admirable, was a failure with a very, very small concession. The TSA can probably even circumvent the "public comment" entirely and no one will sanction them.

Look, I'm glad that Flyers Rights is speaking out about this and I see why they want to paint a rosy picture, but things are worse now than they were a year ago. There are more scanners, the pat-downs are more invasive, and the TSA regularly makes statements showing that it does not see limits on its power.

Don't be so silly! Of course the TSA's warrantless searches don't violate the Constitution!

This is a really bizarre editorial in the Denver Post:

Regular readers know we've been less than thrilled with what we consider to be the Transportation Security Administration's sometimes ham-handed approach to airport screenings. But we've never claimed that even the incidents that aroused our ire violated the Constitution's 4th Amendment ban on "unreasonable searches and seizures."

...The court points out that "screening passengers at an airport is an 'administrative search' because the primary goal . . . is to protect the public from a terrorist attack." That's significant because an administrative search, as the Supreme Court has ruled, "does not require individualized suspicion" and can be justified by the "degree to which it is needed for the promotion of legitimate governmental interests."

Thankfully, Becky Akers explains what a joke the legal system is with respect to "administrative searches."

You need not be intimately familiar with the era’s history to predict that bureaucratic whim, dictatorship, and injustice quickly dominated aspects of life previously off-limits to government. To quiet rebellious Americans, Franklin Roosevelt signed the Administrative Procedures Act (APA). It prescribed a uniform method by which agencies would legislate — though they designate their laws “regulations” the better to fool us. But consistent or not, tyranny is tyranny.

The APA also provided “relief” for folks whom bureaucratic action “harms.” How? The victim appeals to the agency, which determines the justice of his complaint. I haven’t found statistics on the number of times agencies have ruled against themselves, but I’d bet the farm the figure’s lower than a politician’s morals.

EPIV v DHS decision

In short, the court says the scanners aren't unconstitutional because violating privacy is necessary, but, since they do indeed violate privacy, the TSA should have had a public comment period before installing them. The judge must have been channeling Orwell.

At least that's my take on it. Here are a few others:

• SF Gate
• Forbes
• CNET
• MSNBC
• LA Times
• TechDirt (includes full text of ruling)

UPDATE: For what it's worth, I just want to say that - while I applaud the efforts of EPIC - I do not see any possibility of legal success through the courts on this matter. EPIC has done an excellent job of bringing focus to this issue, but in the end it is the government ruling about whether the government is doing a good job. Once in awhile there's a victory here, but mostly these cases just show what a sham the system is. Sorry to be such a downer. I guess what I'm trying to say is that if you want to expend your energy on something, you have to be realistic about the likely outcomes. To that end, I don't think an airline boycott is likely to help abolish the TSA. See my earlier post on this.

Why don't TSA agents wear dosimeters?

And not just when operating the new body scanners, but also the carry on and checked luggage scanners? Some agents are starting to wake up. EPIC has found out that Boston workers who expressed concerns were ignored and were denied a request to wear dosimeters.

In the same FOIA request, EPIC also confirmed that the TSA's statements regarding the safety testing by experts at NIST and Hopkins were untrue. (Shocking, I know.) Here's one concise report:

But in an email obtained by EPIC, a NIST official stated that the agency had not tested the scanners for safety and does not in fact do product testing. Rather NIST had merely measured the radiation dose from a single machine against the standard of what is considered acceptable. It had not done the rigorous product testing required to determine safety over time.

Although TSA union reps at Boston's Logan Airport asked that the agency allow its screeners to wear radiation-monitoring devices, the TSA has yet to provide the dosimeters, EPIC said. Meanwhile, another document obtained by EPIC shows that NIST recommends that TSA screeners avoid standing next to the scanners whenever possible, and a Johns Hopkins University study finds that radiation zones around body scanners could potentially exceed the "General Public Dose Limit."

The problem with public policy

A Law professor from Indiana University, Fred Cate, testified before Congress last month about the scanners. While his argument is factual, the effectiveness of the scanners is purely a peripheral issue (but one that Rep Mica no doubt wants to hear). I am surprised this is coming from a lawyer, but then, law may be all about pragmatism and safe policy, not - oh, I don't know - based on written law and the classical liberal principles that this nation is based on.

Also testifying, as I noted earlier, were Alaska State Rep Cissna, who just doesn't like the pat-down, but doesn't see the TSA in general as perpetrating rights violations.


Dr. David Brenner from Columbia lambasts the health risks of the backscatter, while not acknowledging any possible risks for the millimeter wave scanners. 

Re: And you thought this was limited to airports

Forbes writer, Andy Greenberg, follows up on the story that DHS tested scanners at a train station years ago.

When it comes to full body scanners, the Department of Homeland Security doesn’t always offer the same level of transparency that it imposes on your clothes.

Last week, I wrote about a new set of documents the Electronic Privacy and Information Center (EPIC) obtained through the Freedom of Information Act, revealing research proposals to bring full-body scanners to train stations, mass transit, and public events. Contracts included in the EPIC release showed plans to develop long-range scans that could assess what a subject carried from 30 feet away, along with studies that involved systems for x-ray scanners mounted in vans and “covert” scans of pedestrians.

When I reached the Department of Homeland Security for comment, a spokesperson offered only this immediate statement at the time: the “TSA has not tested the advanced imaging technology that is currently used at airports in mass transit environments and does not have plans to do so.”

But when I pressed for more information, the agency sent along a more thorough statement. ”None of the projects included in the documents released by EPIC are currently active – all have been terminated. The objective of the projects was to assess the technology,” the statement begins. And then the interesting bit:  ”With the exception of the Rail Security Pilot Program, which conducted limited field testing in public locations in 2006, testing for all of these projects was conducted in labs, using volunteers.”

The “exception” in that second statement seems to clearly contradict the DHS’s first comment. Did the DHS test scanners on subway and train passengers, or didn’t it? Read the rest

Update on EPIC vs DHS

EPIC's case against the TSA scanners on 4th Amendment grounds was heard in a DC court this past week. Coverage is at The Washington Post and Wired. When asked whether strip searches would be legal, the DHS lawyer said yes:

At times the judges also expressed concerns about how far TSA can go. Judge David Tatel wondered whether the impact of body scanners on travelers is so severe that the public should have been able to comment before the scanners went into primary use. Tatel and Judge Karen Henderson questioned whether the TSA would be within its authority to determine one day that the security threat required that all passengers be strip searched.

Brinkmann said TSA could make such a determination without public input, as it did with the body scanners. But she said both are subject to the court's review, and in the case of the strip search, "I think you'd have an overwhelming Fourth Amendment claim."

The lawyer is implying, of course, that there is not an overwhelming 4th Amendment claim in the case of the scanners. Let's hope the judges disagree, but I'm not very optimistic.

And you thought this was limited to airports

Before airport body scanners were on the radar of many freedom-loving Americans, Homeland Security was figuring out the next step for brutal assassination of the Fourth Amendment.

The Homeland Security Department paid contractors millions of dollars to develop and study surveillance systems that could covertly track pedestrians and check under people’s clothing with airport-style body scanners as they enter train stations, bus depots or major events, newly released documents show.

Thanks to the work of EPIC, we now know about these projects. Chertoff's Rapiscan received almost $2 million in 2005 to turn its scanner into one that would work on moving targets: people in a crowd. No consent would be given and people would be irradiated and virtually strip-searched without any knowledge or warrant. Northeastern University received a similar grant to investigate these types of devices around the same time.

The documents EPIC obtained also show that pilot programs for surveillance of all rail passengers were in place (presumably using only standard photography and videos and possibly infrared imaging) in New Jersey and elsewhere. Additionally - of course - the images were saved for analysis.

Old news on images

I had started writing the following post last fall, but never put it up:

A TSA spokesman is repeating the same lie that has already been debunked. In an article about the installation of another scanner in Utah, Dwayne Baird is quoted as saying:

“There’s no ability to store [images]. They can’t be transmitted, printed or saved in any way,” Baird said.

In the meantime, I recalled that one of my very early posts was about actual images from the scanners and, at the time, EPIC had not released the ones it obtained from its FOIA request. As most of you know, they released 100 such images in November, and I figure I should have the link somewhere on this site. The images they released are significantly less graphic and I find it odd that you can see people walking to and from the scanner. I don't know what the set-up is at the courthouse where these were taken, but it certainly begs a few questions:

EPIC vs DHS: Judge blocks release of test images

EPIC's Freedom of Information Act request (FOIA) for the TSA to provide the 2000 images of volunteers that it collected while testing the scanners has been denied. TSA claims that this would be a security risk, and the judge agreed. I think the real reason that TSA won't release them is 2-fold:

1. Power. As with any bureaucracy, turf protection is most important. Releasing the images is giving up control, and no bureaucrat willingly relinquishes their power.
2. PR. We know these images are offensive. The more that are available, the less likely that the American public will continue to submit. Incidentally, in the TechDirt comments, someone questions whether an electronic privacy advocacy group should seek these images, but more of these images need to be leaked to undermine the remaining support that the scanners have. (If you question whether the images are offensive, I have a challenge for you. Display one of these images in public. I own this shirt and I do wear it around as part of my campaign to shed light on this. I honestly feel embarrassed when I do so because it is so graphic.)

 TSA was forced to hand over some other information, including specs and contracts for the scanners (x-ray backscatter and millimeter wave).

EPIC vs DHS

There is news from the lawsuit filed by EPIC against DHS over the scanners: DHS finally filed its answer brief. A run-down of its contents can be found at Network World. Expect to hear more about this suit in March, when the hearing is scheduled to take place.

EPIC sponsored a conference that coincided with this news. Ralph Nader - whom I disagree with on many things - is a consistent civil libertarian and calls out the TSA policies. I don't know what his solution is (ahem! abolition) but his criticism is dead-on:

The TSA is a basketcase, collectively... What's happening is, we are incrementally losing our freedoms.

 Edward Luttock of the Center for International and Strategic Studies (an organization whose policy suggestions I rarely agree with) had an interesting story about the efficacy of the scanners:

In a test conducted in Europe, German prison guards were instructed to sneak explosives past three different scanners, including the full-body X-ray machine currently causing such a furore in the United States, Luttwak, a senior associate at the Center for International and Strategic Studies, said.

"They did it with such ease that the Air Travel Association, IATA, said there is no case for scanners," said Luttwak.

And word is that Rep. Chaffetz will re-introduce his legislation to prevent scanners from being used as primary screening. Chaffetz is one of the good guys here as he's been against the scanners from the start. Speaking personally, though, this is too little too late: I won't fly until airports and airlines run their own security.

Federal case

The Electronic Privacy Information Center has been hard at work on behalf of our freedom. From their website:

EPIC Challenge to Airport Body Scanner Program Moves Forward in Federal Court: The United States Court of Appeals for the District of Columbia Circuit has set a briefing schedule for EPIC v. DHS, No. 10-1157, EPIC's challenge to the airport body scanner program. EPIC has alleged that that the Department of Homeland Security has violated three federal laws (the Administrative Procedures Act, the Privacy Act, and the Religious Freedom Restoration Act) and that the body scanner search itself is unconstitutional, given what the courts have said about the permissible scope of airport screening procedures. EPIC's initial brief will be due November 1, 2010. Subsequent briefs from DHS and EPIC will be due by December 15, 2010. In earlier open government litigation against DHS, EPIC obtained evidence that the devices are designed to store and record images. For more information, see EPIC - EPIC v. DHS (Suspension of Body Scanner Program). (Sep. 2, 2010)