Tag: strip-search machines

Dear America, I Saw You Naked

Politico has a hilarious, revolting, and insightful article, written by former Transportation Security Administration screener Jason Edward Harrington. It’s called “Dear America, I Saw You Naked.” The subhead: “And yes, we were laughing.”

Many of the images we gawked at were of overweight people, their every fold and dimple on full awful display. Piercings of every kind were visible. Women who’d had mastectomies were easy to discern—their chests showed up on our screens as dull, pixelated regions. Hernias appeared as bulging, blistery growths in the crotch area. Passengers were often caught off-guard by the X-Ray scan and so materialized on-screen in ridiculous, blurred poses—mouths agape, à la Edvard Munch. One of us in the I.O. room would occasionally identify a passenger as female, only to have the officers out on the checkpoint floor radio back that it was actually a man. All the old, crass stereotypes about race and genitalia size thrived on our secure government radio channels.

In July 2011, the D.C. Circuit Court of Appeals ordered the TSA to conduct a formal rulemaking and take comments from the public on the use of strip-search machines at airports. TSA took 20 months to propose a two-sentence regulation, which, as we pointed out to the agency, is totally defective.

The comment period closed in June last year and we have waited another seven months, at this point, for a final rule. When it comes out, it can be challenged in court under the “arbitrary and capricious” standard of the Administrative Procedure Act.

The evidence in the rulemaking docket shows that strip-search machines cost more in dollars, privacy, and dignity than they provide in security, which, as Harrington’s article again shows, is not very much: “We knew the full-body scanners didn’t work before they were even installed.”

Cato Comments on TSA Body Scanners

In 2007, the president and CEO of the RAND Corporation, James Thomson, wrote up his impressions of the management at the Department of Homeland Security. “DHS leaders … ‘manage by inbox,’ with the dominant mode of DHS behavior being crisis management,” he wrote. “DHS implements most of its programs with little or no evaluation of their performance.”

If you want proof, look no further than the nation’s airports. Across the United States, the Transportation Security Administration harries American travelers daily, giving them a Hobson’s choice between standing, arms raised, before a nude body scanner or undergoing a prison-style pat-down. It doesn’t have to be this way.

Nearly two years ago, the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public” as the use of body scanning machines, the court said. Its ruling required the agency to publish its policy, take comments from the public, and consider them in formalizing its rules.

The last day to comment on the proposed rules is Monday, June 24th. You can submit your comments until then.

In our comment, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I take the TSA to task a number of ways. The TSA fails to account for privacy in its proposed policy, even though the lawsuit that required the rulemaking was based on its privacy consequences.

The policy proposal that TSA issued is hopelessly vague. In fact, the court decision requiring the TSA to put its policies on record is more informative about what the rights of travelers and responsibilities of the TSA are.

Instead of placing its risk management work in the docket, TSA claims that its “risk-reduction analysis” is classified. There is almost no basis for treating such work as secret. Indeed, Mueller and Stewart have done a risk assessment of nude body scanners, published it in an article and their book, and spoken about it at public conferences. Their analysis has shown that the nude body scanning policy does not provide cost-effective security. Quite simply, spending money on nude body scanning buys a tiny margin of security at a price that is too dear. If you add non-monetary costs such as privacy and liberty, as well as opportunity costs such as time wasted due to body scanning, the cost-ineffectiveness of body scanners becomes all the more clear.

Travelers wary of TSA mistreatment choose driving over flying for many short or medium-length journeys. Given the far greater danger of driving, this means more injuries and as many as 500 more Americans killed per year on the roads. Outside of war zones, TSA policies visit more death on Americans than Islamist extremist terrorism has worldwide since 9/11.

The National Research Council found in 2010 that the risk models the Department of Homeland Security uses for natural hazards are “near state of the art” and “are based on extensive data, have been validated empirically, and appear well suited to near-term decision needs.” This is not the case with airline security. In fact, the TSA will accept risks of death that are higher than terrorism in order to maintain nude body scanning policies. The original body scanners, which applied x-ray technology, posed a fatal cancer risk per scan of about one in 60 million. Asked about this on the PBS NewsHour, TSA head John Pistole said this risk was “well, well within all the safety standards that have been set.” The chance of an individual airline passenger being killed by terrorism is much lower: one in 90 million.

TSA’s nude body scanning policies probably cause more deaths than they prevent. For this reason, we recommend in our comment that the TSA suspend the current policies, commence a new rulemaking, and implement a rational policy resulting from an examination of all issues on the public record. After comments close, TSA will issue a final regulation on a schedule it determines, after which the regulation can be challenged in court, and very likely it will.

Government Surveillance of Travel IT Systems

If you haven’t seen Edward Hasbrouck’s talk on government surveillance of travel IT systems, you should.

It’s startling to learn just how much access people other than your airline have to your air travel plans.

Here’s just one image that Hasbrouck put together to illustrate what the system looks like.

He’ll be presenting his travel surveillance talk here at Cato at noon on April 2nd. We’ll also be discussing the new public notice on airport strip-search machines issued by the TSA earlier this week.

Register now for Travel Surveillance, Traveler Intrusion.

Comment on TSA Strip-Search Machine Policy—And Attend Our Event April 2nd

You can now comment on the TSA’s proposed rule regarding its use of strip-search machines on American travelers at our nation’s airports.

Under a July 2011 court order requiring it to do so, the TSA finally proposed the rule that explains its airport procedures with respect to strip-search machines. You can now know your rights and obligations in that process, how to opt-out of the strip-search machines, and where to register complaints if you feel you’ve been treated badly.

Just kidding!

This is the two-sentence statement it proposed to add to existing language about passenger screening:

(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.

It took 20 months to produce these two sentences, which allow the TSA to do whatever it wants. My initial thoughts were to find TSA contemptuous of the court’s order and wronly using secrecy to hide the analysis of its policies.

We’ll be discussing the proposal at a Cato policy forum next Tuesday, April 2nd, called “Travel Surveillance, Traveler Intrusion,” starting at noon Eastern. Like most Cato events, it will be live-streamed.

The event is a two-fer. Not only will we hear from Ginger McCall of the Electronic Privacy Information Center, the organization that brought the suit that finally produced this rulemaking. We’ll also hear from Ed Hasbrouck, whose research reveals just how intensively the U.S. government monitors the air travel of every American.

Feel free to move about the country? Just wait until you learn how your movements are tracked—before and after you get your digital strip-search or prison-style pat-down.

Register now!

Still Contemptuous of the Court, TSA Doesn’t Even Try to Justify its Strip-Search Machine Policy

It took the Transportation Security Administration 20 months to comply with a D.C. Circuit Court of Appeals order requiring it to issue a justification for its policy of using strip-search machines for primary screening at airports and to begin taking comments from the public.

In that time, it came up with a 53-page (double-spaced) notice of proposed rulemaking. That’s 2.65 double-spaced pages per month.

This may be the most carefully written rulemaking document in history. We’ll be discussing it next week at an event entitled: “Travel Surveillance, Traveler Intrusion.” Register now!

The TSA’s strip-search machine notice will be published in the Federal Register tomorrow, and the public will have 90 days to comment. The law requires the agency to consider those public comments before it finalizes its policies. If the comments reveal the TSA’s policies to be arbitrary or capricious, the policies can be struck down.

But what is there to comment on? The TSA’s brief document defends a hopelessly vague policy statement instead of the articulation that the court asked for. And as to the policy we all know it’s implementing, TSA hides behind the skirts of government secrecy.

When the court found that the TSA was supposed to take comment from the public, it wanted a clearer articulation of what rules apply at the airport. The court’s ruling itself devoted several paragraphs to the policy and how it affects American travelers.

[T]he TSA decided early in 2010 to use the scanners everywhere for primary screening. By the end of that year the TSA was operating 486 scanners at 78 airports; it plans to add 500 more scanners before the end of this year.

No passenger is ever required to submit to an AIT scan. Signs at the security checkpoint notify passengers they may opt instead for a patdown, which the TSA claims is the only effective alternative method of screening passengers. A passenger who does not want to pass through an AIT scanner may ask that the patdown be performed by an officer of the same sex and in private. Many passengers nonetheless remain unaware of this right, and some who have exercised the right have complained that the resulting patdown was unnecessarily aggressive.

The court wanted a rulemaking on this policy. In the jargon of administrative procedure, the court demanded a “legislative rule,” something that reasonably details the rights of the public and what travelers can expect when they go to the airport.

Instead, the TSA has produced a perfectly vague policy statement that conveys nothing about what law applies at the airport. In the regulations that cover screening and inspection, the TSA simply wants to add:

(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.

Not a word about the use of strip-search machines as primary screening. Nothing about travelers’ options. Nothing about signage. Nothing about the procedures for opt-outs. Nothing about what a person can do if they have a complaint. It’s not a regulation. It’s a restatement of “we do what we want.”

That’s contemptuous of the court’s order requiring TSA to inform the public, take comments, and consider those comments in formulating a final rule. TSA is doing everything it can to make sure that the airport is a constitution-free zone, and this time it’s lifting a middle finger to the D.C. Circuit Court of Appeals.

It is possible, even in a relatively short document, to articulate how billions of dollars spent on exposing the bodies of millions of law-abiding Americans makes the country better off. What’s amazing about the document is how little it says. TSA doesn’t even try to justify its strip-search machine policy. Instead, it plays the govenment secrecy trump card.

Here is everything TSA says about how strip-search machines (or “AIT” for “advanced imaging technology”) make air travel safer:

[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.

Balderdash.

Under Executive Order 135256, classification is permitted if “disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism.”

“If there is significant doubt about the need to classify information,” the order continues, “it shall not be classified.”

Assessing the costs and benefits of TSA’s policies cannot possibly result in damage to national security. The reason I know this? It’s already been done, publicly, by Mark G. Stewart of the University of Newcastle, Australia, and John Mueller of the Ohio State University. They published their findings in the Journal of Homeland Security and Emergency Management in 2011, and national security is none the worse.

Walking through how well policies and technologies produce security can be done without revealing any intelligence about threats, and it can be done without revealing vulnerabilities in the policy and technology. But the TSA is playing the secrecy trump card, hoping that a gullible and fearful public will simply accept their authority.

I anticipated that the agency might try this tactic when the original order to engage in a public rulemaking came down in mid-2011. In a Cato blog post, I wrote:

Watch in the rulemaking for the TSA to obfuscate, particularly in the area of threat, using claims to secrecy. “We can’t reveal what we know,” goes the argument. “You’ll have to accept our generalizations about the threat being ‘substantial,’ ‘ever-changing,’ and ‘growing.’” It’s an appeal to authority that works with much of the American public, but it is not one to which courts—a co-equal branch of the government—should so easily succumb.

If it sees it as necessary, the TSA should publish its methodology for assessing threats, then create a secret annex to the rulemaking record for court review containing the current state of threat under that methodology, and how the threat environment at the present time compares to threat over a relevant part of the recent past. A document that contains anecdotal evidence of threat is not a threat methodology. Only a way of thinking about threat that can be (and is) methodically applied over time is a methodology.

The TSA published nothing, and it hopes to get past the public and the courts with that.

Its inappropriate and undeniably overbroad use of secrecy will be in our comments to the agency and the legal appeal that will almost certainly follow.

Crucially, agency actions like this are subject to court review. When the TSA finalizes its rules, a court will “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Sooner or later, we’ll talk about whether TSA followed the court’s order, the lawfulness of wrapping its decision-making in secrecy, and the arbitrary nature of a policy that has no public justification.

Slow and Steady Progress on TSA Strip-Search Policy

Having pled before the D.C. Circuit Court of Appeals that doing a notice-and-comment rulemaking on its strip-search machine policy is difficult and expensive, the Transportation Security Administration is dropping a cool quarter-billion dollars on new strip-search machines. That’s quite a fixation the TSA has, putting spending on new gadgets ahead of following the law.

But the writing is on the wall for the practice of putting travelers through strip-search machines and prison-style pat-downs at the government checkpoints in American airports.

On Tuesday, the D.C. Circuit ruled against a petition to have the court force TSA to move forward with taking public comments as required by law. The language of the order signals the court’s expectation, though, that the TSA will get this done, quoting the TSA’s language and, well, saying as much.

ORDERED that the petition for writ of mandamus be denied in light of the Government’s representation that “the process of finalizing the AIT Rulemaking documents so that the NPRM may be published is expected to be complete by or before the end of February 2013.” Accordingly, we expect that the NPRM will be published before the end of March 2013.

Generous court — it gave the TSA an extra month.

I imagine the folks at EPIC are preparing a filing for April 1st. No foolin’, there will be a public push to go along with it, as large or larger than the most recent.

The TSA knows it can only carry on so long in contempt of the law and the court. I expect the rulemaking documents will issue by midnight on March 31st, even if a special Sunday edition of the Federal Register has to be published to do it.

The court’s ruling is technically adverse to the petitioners, but it is better than a flat denial. The court was not going to cancel a policy that is arguably an important security measure. The best outcome was some kind of date certain with consequences for failure to act. The TSA delivered a date certain, which the court has adopted. Leaving the consequences unstated could embolden TSA to more contumacy, but I doubt it.

Once the rulemaking is in place, the strategy I laid out a year ago kicks in.

The TSA will have to exhibit how its risk management supports the installation and use of strip-search machines. How did the TSA do its asset characterization (summarizing the things it is protecting)? What are the vulnerabilities it assessed? How did it model threats and hazards (actors or things animated to do harm)? What are the likelihoods and consequences of various attacks? Risk assessment questions like these are all essential inputs into decisions about what to prioritize and how to respond.

When the insufficiency of its policymaking is shown, the policy will be ripe for review under the Administrative Procedure Act’s “arbitrary and capricious” standard and there will be a record sufficient to justify a Fourth Amendment challenge to the policy of prison-style searches of all American travelers.

Yes, the challenge to this policy is taking a long time, but pressing back on all fronts against the invasive, unneeded security state is a joy even when it requires patience.

Incoherent Politicians Lag Public Opinion on TSA

If you needed proof of politicians’ sensitivity to, and encouragement of, persistent terrorism fears, look no further than today’s hearing in the House Homeland Security Subcommittee on Transportation Security. It’s called “Eleven Years After 9/11 Can TSA Evolve To Meet the Next Terrorist Threat?” and it’s being used to feature—get this—a report arguing for a “smarter, leaner” Transportation Security Administration.

Could the signaling be more incoherent? The hearing suggests both that unknown horrors loom and that we should shrink the most visible federal security agency.

Lace up your shoes, America—we’re goin’ swimmin’!

Our federal politicians still can’t bring themselves to acknowledge that terrorism is a far smaller threat than we believed in the aftermath of the September 11, 2001, attacks, and that the threat has waned since then. (The risk of attack will never be zero, but terrorism is far down on the list of dangers Americans face.)

The good news is that the public’s loathing for the TSA is just as persistent as stated terrorism fears. This at least constrains congressional leaders to do make gestures toward controlling the TSA. Perhaps we’ll get a “smarter, leaner” overreaction to fear.

Public opprobrium is a constraint on the growth and intrusiveness of the TSA, so I was delighted to see a new project from the folks at We Won’t Fly. Their new project highlights the fact that the TSA has still failed to begin the process for taking public comments on the policy of using Advanced Imaging Technology (strip-search machines) at U.S. airports, even though the D.C. Circuit Court of Appeals ordered it more than a year ago.

The project is called TSAComment.com, and they’re collecting comments because the TSA won’t.

The purpose of TSAComment.com is to give a voice to everyone the TSA would like to silence. There are many legitimate health, privacy and security-related concerns with the TSA’s adoption of body scanning technology in US airports. The TSA deployed these expensive machines without holding a mandatory public review period. Even now they resist court orders to take public comments.

TSAComment.com has gotten nearly 100 comments since the site went up late yesterday, and they’re going to deliver those comments to TSA administrator John Pistole, Homeland Security secretary Janet Napolitano, and the media.

The D.C. Circuit Court did require TSA to explain why it has not carried out a notice-and-comment rulemaking on the strip-search machine policy, and assumedly it will rule before too long.

Getting the TSA to act within the law is important not only because it is essential to have the rule of law, but because the legal procedures TSA is required to follow will require it to balance the costs and benefits of its security measures articulately and carefully. Which is to say that security policy will be removed somewhat from the political realm and our incoherent politicians and moved more toward the more rational, deliberative worlds of law and risk management.

Hope springs eternal, anyway…

There could be no better tribute to the victims of 9/11 than by continuing to live free in our great country. I won’t shrink from that goal. The people at TSAComment do not shrink from that goal. And hopefully you won’t either.

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