‘The Rutherford Institute and the Competitive Enterprise Institute (CEI) have joined forces to continue to push back against the Transportation Security Administration’s (TSA) use of whole body scanners, which have been likened to virtual strip searches, in the nation’s airports. In mounting a legal challenge to the TSA’s protocol for subjecting travelers to whole body imaging technology (WBI), attorneys with The Rutherford Institute and CEI have asked the U.S. Court of Appeals for the District of Columbia to declare that the TSA acted arbitrarily, capriciously and contrary to law in promulgating its rules on the use of WBI technology at airports.
The Rutherford Institute’s legal challenge to the TSA’s passenger screening procedures as ineffective and unlawful coincides with reports that TSA agents using WBI scanners failed to detect explosive material smuggled through by undercover Homeland Security units at some of the nation’s busiest international airports, most recently at Minneapolis-St. Paul International Airport.‘
‘The TSA began using WBI technology at airports for security screening in 2007. WBI generates a highly-detailed image that exposes intimate details of a person’s body to government agents. In 2009, the TSA began using WBI as a primary means of screening passengers, deploying the scanners at airports throughout the country, but without the support of any legislation or agency regulation. In May 2009, The Rutherford Institute and 30 other organizations sent a letter to the Department of Homeland Security (DHS) demanding the DHS implement rulemaking procedures in accordance with the Administrative Procedures Act (APA), which requires the agency to give formal notice to the public of proposed actions and an opportunity to comment on the proposed action, in connection with the deployment of WBI scanners. When the TSA failed to notify the public of its decision to deploy the scanners or ask for public comments on use of the use of WBI technology as required by federal law, a lawsuit was brought alleging that this failure violated the APA. In July 2011, the U.S. Court of Appeals for the District of Columbia ruled that the TSA’s implementation of WBI scanners without conducting rulemaking proceedings did violate federal law and ordered the agency to begin such proceedings. When the TSA failed to issue a proposed rule for over a year, the matter returned to the court, which directed that the TSA issue a proposed rule on WBI scanners by March 2013. The TSA issued its rule on March 3, 2016, but CEI and The Rutherford Institute filed a challenge asserting the rule is arbitrary and capricious.‘