Whole Body Scanners, the Fourth Amendment, and the Administrative Procedures Act

Whole body scanners (also known as Advanced Imaging Technology or AIT) are those new millimeter wave and backscatter scanners that the Department of Homeland Security is deploying in airports around the country -- what some people call the "naked machine."  Today, the efforts of some to have the scanners removed took an interesting turn -- with this mandamus petition filed by the Electronic Privacy and Information Center. DHS began the deployment of AIT scanners in earnest in the aftermath of the failed Christmas bomb plot a couple of years ago.  The government asserted that the scanners were safe and that their new imaging technology would assist in detecting bomb threats to aviation.  Critics principally challenged the deployment as a violation of privacy and civil liberties -- a challenge grounded, ultimately, in the requirements of the Fourth Amendment. That broad challenge has been (and is likely to be) unsuccessful.  Indeed, as the language of the DC Circuit demonstrates, the courts can be somewhat dismissive of the constitutional privacy claim in the context of aviation screening (a doctrine that goes back to the first scanners deployed in the 1970s):

“Th[e] balance clearly favors the Government here. The need to search airline passengers ‘to ensure public safety can be particularly acute,’ . . . and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. 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 pat-down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.” (EPIC v. DHS, 653 F.3d 1, 10-12 (D.C. Cir. 2011) (citation omitted)).

Thus, though it seems strange to outside observers, the prospects for a successful Fourth Amendment challenge to any airport scanning program, like AIT use, appear quite limited. But even if AITs are considered constitutional that determination does not, as a matter of law, necessarily justify their deployment.  As with any new regulatory system, the governmental agency advancing the new program must demonstrate that its decision to begin the program is consistent with existing law and grounded in reason.  TSA has yet to fully make that case for AITs. When the TSA first began deploying AIT technology, it did so in the immediate aftermath of the notorious Christmas Day “underwear bomber” case.  The TSA has argued that in deploying the AIT technology it wasn’t changing any rules but merely modifying its security procedures in light of need.  If, in fact, the use of AITs were just a procedural change, rather than a substantive one, the TSA would not be obliged to provide the public with notice of the change and an opportunity to comment.  The Administrative Procedures Act requires, however, that when new substantive rules (sometimes called “legislative rules”) are promulgated, the public must have an opportunity to have input. Obviously, the line between procedural changes and substantive ones is often fuzzy.  But the same D.C. appeals court that rejected the Fourth Amendment challenge has also concluded that using AITs is a substantive change. The judges noted that the use of AIT technology has perhaps a broader effect on the American public than almost any other rule of government operation.  And the court noted as well that issues of efficacy, privacy and safety have proven to be of broad public concern and comment.   And so, in July 2011 the court concluded that the TSA must open up a public “notice and comment” period for discussion and justification of the need for AITs.  Though the court instructed TSA to begin the process “promptly,” it has, as of today, not yet done so. This appeals court order is a step in the process of determining whether AITs are lawful.  In making judgments about substantive rules, federal agencies traditionally have wide latitude and their decisions are commonly accorded significant deference by the courts, especially when security is at issue.  Thus the challenge to use of AIT technology under the APA is probably a long-shot to forcing the TSA to change its policy.  But, as the matter is ongoing, the final outcome has yet to be determined. And that, of course, brings us back to today’s filing – the problem is that TSA could, probably, succeed in justifying their decision to deploy the AITs, but they haven’t even tried.  Even though a year has passed since the DC Circuit decision directing TSA to “promptly” begin the rulemaking, nothing has happened.  And so EPIC has gone back to court.  Stay tuned .....