Court OKs Airport Body Scanners, Rejects Constitutional Challenge
wired.com
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For example, recently in the news (see http://www.csmonitor.com/USA/Latest-News-Wires/2011/0707/TSA... ) the FBI and TSA have admitted that current security procedures are incapable of detecting surgically implanted explosives.
While this scenario is unlikely, the point is that a determined enemy will find a way to strike. If anything, there are numerous ways in which the current procedures are ineffective against various attacks such as
1. Suicide bomb in the security line 2. RPG attack from outside the airport grounds 3. Plastic weapons in carry-ons.
A few months back I accidentally flew home with a box cutter I had been using at a client site I was visiting. Adam Savage talked about accidentally taking 12" foam-cutting razor blades in his laptop bag.
And with tight security, wouldn't terrorists simply look to less-protected areas for attacks, such as trains or highways? The fact that attacks have not been made on those insecure areas indicates that the threat level to U.S. citizens on U.S. soil is incredibly low.
Now a bomb in an airport is much less effective, for a few reasons. Of course, it will kill and injure a lot of people, but it won't create the desired spectacle. Access to the scene is going to be limited by the building's geography and the additional security, so there won't be any strong defining images that capture the essence of the whole event. Bloody and tearful civilians get photographed, of course, but in the collective imagination one group of victims/survivors looks very much like another. People will remember that something bad happened, and where, but it won't be very distinct from similar events that are distant in time or place. Secondly, it would be possible to cut the risk of a repeat incident substantially by requiring advance check-in or use of a credit card to purchase tickets, and prohibiting any entry to the airport facilities proper without a ticket. This is not far away from what already happens with a boarding pass, but is that little bit more traceable and thus raises the barriers to entry. Third, a plane is a confined space with a fairly narrow margin of safe operation. There is nowhere to flee too if a terrorist loses his nerve (and a higher probability of getting caught once the plane lands), and even if the terrorist fails the 'mission' is not a total bust because there will be panic and an emergency landing, which will at least rattle people. In an airport, a hesitant individual may simply give up and leave before blowing himself up, or if his fear betrays him and others become suspicious, he may find himself the lonely occupant of an empty space before being shot or set upon or (worst of all, from the terrorist planner point of view) setting off his bomb and not killing or seriously injuring anyone but himself. Flying is unusual enough for most people, and the awareness of terrorism sufficiently high, that people traveling in airports tend to have elevated levels of alertness.
If the goal of terrorism was simply to kill as many people as possible, then there are abundant opportunities for doing so that are easier than an airport, and arguably more frightening. There are larger and denser crowds of people all over the place where a terrorist could cause carnage with ease. But they lack the visual distinctiveness, the element of captivity, and the mobility that mean not only could you get blown up IN a plane, you could walking along minding your own business and have one fall out of the sky on top of you.
As for the structural considerations, consider that takeoff and landing are the most dangerous parts of a plane flight, on average. Airports are thus more likely to experience a plane-size accident than almost any other location. Planners and architects are well aware of this, and the structures and materials used to build the airport are rated to withstand a higher level of destructive force than normal buildings. An explosion in a massive terminal is likely to result in less damage, not more, because the explosive force will be dissipated in the cavernous space. It's explosions in small confined spaces that are really worrying, because then the pressure wave doesn't have many options about where to go and bounces around within the space reducing everything to small fragments. For the simplest possible demonstration of this, take a tweezers and hold a match in a flame; it flares up and goes out. Now take another match, wrap the head in tinfoil, and repeat. Wear safety glasses.
> If the goal of terrorism was simply to kill as many
> people as possible
It would be the same as if terrorists had randomly chosen a handful of cars in a handful of cities and all wired them up with bombs on the same day. People would be afraid to get into their cars, or they would at least be thinking 'what-if.'
Congress directed the TSA to "give a high priority to developing, testing, improving, and deploying" at airport screening checkpoints a new technology "that detects nonmetallic, chemical, biological, and radiological weapons, and explosives, in all forms." The TSA responded by contracting to develop the scanner in two forms: one that uses millimeter wave technology and another that uses backscatter technology. Each technology is designed to produce a crude image of an unclothed person. No passenger is ever required to submit to an AIT scan, and signs at security checkpoints notify passengers that they may instead opt for a pat down. Each image produced by the scanner passes through filters that obscure facial features and is viewable on a computer screen only bay an officer sitting in a remote and secure room. After the passenger is cleared, the image is deleted.
In April 2010, the EPIC argued that the use of the AIT for primary screening violates the Privacy Act, the Fourth Amendment, a provision of the Homeland Security Act, and the Religious Freedom Restoration Act. Here, the court focused mostly on the procedural argument that the TSA should have engaged in notice-and-comment rulemaking.
The petitioners argued that the TSA refused to process and effectively ignored their 2010 letter that putatively "petitioned" for rulemaking; the TSA claimed that this letter did not "petition for the issuance, amendment, or repeal of the rule," because the relief actually sought was the immediate suspension of the AIT program. This court didn't buy that argument.
The TSA anticipated the court would feel this way, so they next argued that they appropriately responded to the petition by denying it. The court can only set aside the TSA's denial if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Moreover, the court is compelled (by Defenders of Wildlife v. Gutierrez) to give a high level of deference to an agency action under 'arbitrary and capricious' review. Here, the TSA denied the petition on the ground that the TSA is not required to initiate rulemaking procedures each time the agency develops and implements improved passenger screening procedures.
So why didn't there TSA publish notice of a proposed rule in the Federal Register and solicit and consider public comments upon its proposal at the outset? They figured they didn't have to. The 'notice and comments' requirement of the APA does not apply "to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." The TSA argued its decision to use the scanners for primary screening comes within all three listed categories. The court notes that procedural rules do not themselves "alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency. A rule with "substantial impact" upon the persons subject to it is not necessarily a substantive rule, however. The new rule imposes no new "substantive" obligations upon airline passengers: they're still required to pass through a security checkpoint, and they're still prohibited from carrying weapons and explosives on board.
However, the court notes that it is "clear" that producing a picture of an unclothed passenger affects the public in a substantively different manner than the beep from a metal detector, and echoes the policy interests served through notice-and-comment rulemaking. The TSA tried to justify its decision to forego notice-and-comment rulemaking by claiming that it announced only an interpretive rule. The petitioners contended that the rule is legislative, rather than interpretive, because it "effectively amends a prior legislative rule." But, because the TSA's policy substantially changes the experience of airline passengers, it's not merely interpretive. The court notes, however, that the purpose of notice-and-comment rulemaking would be "disserved" if an agency with a broad statutory command (like detecting weapons) could avoid notice-and-comment rulemaking simply by promulgating a comparably broad regulation (like requiring passengers to clear a checkpoint) and then using its power to create a strict and specific set of obligations.
The court held that the "TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking" and accordingly remanded the matter back to them for further consideration. The reason they decided not to vacate the present rule was because it would "severely disrupt an essential security operation," and the rule is otherwise lawful.
Turning to the substantive claims, the first one (concerning a violation of the VPPA) failed, because it actually requires a rulemaking proceeding to have occurred and for any objection to have first been made there. Of course, that's the same proceeding at issue in this case, so that claim failed. The second substantive claim was that the scanners violate the Privacy Act, but because the TSA doesn't keep any "system of records" linked to names or any other personal identifier. The third claim was actually more viable: it focused on religious opposition to being viewed naked, but that claim failed because none of the litigants have standing to assert a religious injury. Finally, the petitioners argued a Fourth Amendment violation, because the scanners are more invasive than is necessary to detect weapons or explosives. Because this is an administrative search serving a very important social function, the court concluded that there was no violation.
The court didn't "OK" the body scanners; they remanded the rule back to the TSA so that they can go through proper notice-and-comments by publishing the rule to the Federal Register. They (rightfully) ruled that there were no colorable substantive claims against the rule, based on the petitioners' arguments.
What can we do? Lobby Congress to legislate around this nightmare.
> After the passenger is cleared, the image is deleted.
Who's up for a sit-in protest at SFO?
I opted out of these scanners at SFO and was hassled by security as to why I would want to do that and then they waited about five minutes before beginning manual screening, despite having staff on hand. I assume it's to discourage people from opting out. Nice city, nice airport, bad security.
Somebody I know who's talked with airline CEOs confirms that they're concerned, but still hopeful that it will be transient. Airlines were ridiculously profitable in 2010; 2011 will be a tough year for them in any case because of fuel prices.
When people ask me what they can do to help get rid of these policies, I tell them the best way to make an impact is to stop flying [or reduce as much as possible], tell your airline why, and suggest that all your friends, relatives, and colleagues do the same.
See: https://www.sfoconnect.com/public/sfo-rules-and-regulations for more info.
I'm too scared of getting arrested and, in turn, having that arrest blow my chances of immigrating[2].
[1] http://www.flickr.com/photos/katiekills/5616870009/
[2] Though the more of this sort of BS I see, the less I really want to stay here in the US. :(
Also while trying to take a souvenir snow globe home I found out that TSA says that snow globes are banned even from checked luggage. Huh? I had to ship the fucking thing home.
edit: Just checked the TSA site and apparently they can go into checked luggage. That's a change because I remember looking it up at the time and thinking that it was insane the ammunition was allowed in checked luggage but snow globes weren't.
* Charter service taking off from non-TSA airports, using IT to allow last minute bookings, etc. Priced around domestic first class, maybe around full-fare coach for long prebooking, or at coach rates if a company commits to e.g. 8 interchangeable-passenger seats per flight on every monday and friday flight or something. I think a lot of companies could use 2 seats every week from SFO-NYC, and then just book commercial or buy at higher prices if they end up needing more for periods of peak demand. A lot cheaper than a corporate jet.