Appeals Court Caves to TSA Over Nude Body Scanners | Hacker News Reader

Appeals Court Caves to TSA Over Nude Body Scanners

wired.com

90 pointsvectorbunny44 comments

It's sad to see the executive branch forcing the judiciary into an awkward position.

What exactly is the judge going to do? Fine DHS/TSA? Where will that money go? Right back into the treasury where it came from.

Ugh. TSA makes me sick.

> "What exactly is the judge going to do?"

Hold those in charge personally responsible. Find them in contempt. Lock them up. Go as far up the executive chain as necessary. Have the civilian police deactivate/seize any scanners until the TSA falls into compliance.

The TSA has definitely forced an awkward situation. But it's not one without recourse. The government is always accountable to the people and must obey the law.

If the country paid anything more than lip service to the rule of law and personal liberty, these actions would have already been taken or at least credibly threatened to force this issue along.

Don't be dramatic. The US government is very accountable as far as governments go. The judge hasn't held anyone in contempt yet because foot-dragging isn't really an egregious disrespect to the court in a procedural battle like this one. What the judge is ordering the agency to do is have a public notice & comment on regulations governing the use of these scanners. Writing up proper notice takes a lot of time because any defects in the notice set up a later legal challenge. They're late on this, but agencies always are.

> "They're late on this, but agencies always are."

Months-late could be attributable to the somewhat understandable slow wheels of over-careful i-dotting and t-crossing. But we're going on years-late. And the court had to order the TSA to give so much as a status update after 13 months of failure to comply and official silence.

That's well into egregious disrespect.

> "Don't be dramatic. The US government is very accountable as far as governments go."

Its fairly responsible, despite a few large events, however this is one issue that the US is not grasping the magnitude of.

The TSA is not just impacting your own citizens, think about foreigners visiting, what a great first impression! I've stopped flying through SFO or LAX whenever i visit Sydney or Toronto. I now go through Vancouver every time. It costs me more, but i'm tired of US immigration / TSA shenanigans.

I agree, TSA is a very egregious agency that seems to have been let loose like a bull in a china store. But it's unusually bad as far as federal agencies go.

if you live in the US, this is more correct: The people are always accountable to the government and must obey the law [set forth by the latter].

There are things judges can do that they don't in practice. A common punishment to foot-dragging is to force the agency to pay attorneys' fees for plaintiffs. This comes out of the agencies litigation budgets, which makes it harder for them to fight other challenges and tends to get results.

I don't know what an Appeals Court can do, and I would like to know.

It almost certainly could provide the relief the plaintiffs were asking for, right?

Can it:

    * provide a writ of mandamus stopping the machines until the ordered report is provided?
    * tell the TSA 19 months is too long, they have 90 more days to comply?

As it was, IIRC, the TSA said 19 months, the judge said 20 months!

I thought the TSA's argument as described at the end of the article was patently absurd ("ever-evolving threats"). Did they actually get away with saying that? If there is any decency in the world, that wouldn't stand with SCOTUS.

One of the interesting (to me) items in the article is that it framed the use of body scanners as clearly an agency (administrative) decision, rather than a legal (that is, codified) one.

For rule-making authority to have the force of law, the 90-day comment period is mandated ... does that mean the decision to apply these scanners isn't enforceable (and thus, litigable)? TSA has seemingly worked around this, as there is no aggrieved party (and thus, no standing), due to their opt-out provisions. That seems doubly wrong, and disrespectful of the legal process.

Administrative decisions can often be made without corresponding rulemaking actions. Even when a rule is made the 90 day comment period (normally 60 days after the Notice of Proposed Rulemaking and 30 after the Final Rule) is more of a guideline. You could call it strongly encouraged by several Executive Orders, most recently E.O. 13563.

I always opt-out of the scanners when I fly, but my estimate is that less than 0.5% of other people opt-out. 1 in 200! Most people are too impatient or uninformed to care about privacy or potential health risks.

Do we actually have any conclusive evidence that these scanners are harmful? I thought all the "potential health risks" were just speculative.

Yes but the absence of health risks is pretty speculative too and based on the assumption that the particular machine you are stepping into is functioning as designed.

Do you feel lucky?

I think all programmers should know that even medical grade equipment can go terribly wrong (Therac-25 anyone?). The fact that this stuff isn't medical grade, isn't being operated by people who understand the risks, and isn't allowed to be inspected makes me feel very unlucky.

isn't being operated by people who understand the risks

This is the key point as far as I'm concerned. In what other profession am I allowed to use X-ray machines on the general public without any training whatsoever?

Mad scientist?

I don't think that counts; they would have had to have gone to school to study mad science.

Supervillian maybe ;)

I thought the "potential benefits" were also speculative.

Oh yes, I'm certainly not claiming that the devices are useful by any means, at least when it comes to ultimately making us safer. It's just that arguments on both sides seem to be spacious, which I thought was worth pointing out.

That the arguments for both sides is spacious is in fact an argument in favor of not using the machines. "When in doubt, default to not x-raying people." is a pretty good policy as far as I am concerned.

As a thought experiment, I sometimes imagine a Children of Men-like scenario where, twenty years from now, scientists discover that most American teenagers are sterile.

How is privacy a spacious argument?

"... It's just that arguments on both sides seem to be spacious ..."

"How is privacy a spacious argument?"

spacious

1. Generous or large in area or extent; roomy.

specious

spe·cious (sp sh s). adj. 1. Having the ring of truth or plausibility but actually fallacious: a specious argument.

Do you only see two sides? I see at least four: "we need more tools to identify banned objects", "we need personal privacy", "we don't know the health effects" and "we need cost effective ways to handle the threat of terrorism."

The lack of solid benefits and the known cost of the machines seems heavily weighted against them being cost effective, even ignoring any privacy and health concerns.

EU banned x-ray scanners in all EU airports because of health risk factors:

http://www.forbes.com/sites/daviddisalvo/2011/11/15/europe-b...

I've been told I can't twice. I always want to protest, but never do for fear of ending up on the irrational, incontestable no fly list.

Which airport was this? I fly 4-6 times a week and opt-out every single time. Never once been told no. They try to convince me sometimes to go through the scanner but still refuse.

Just insist on a patdown. (The several times I've flown in the past few years, they either let me through the regular metal detector like normal or I go through/around the metal detector for a patdown, which so far hasn't been invasive and I'm certain I could smuggle a ton of crap on my person.)

I also opt-out when I fly to the US (several times a year) but I get the impression that it's becoming more rare for people to do that. They used to sometimes treat you with a bit of contempt, and now it's more like "really?". I think a lot of the pressure has died down and the public has unfortunately learned to just live with it.

I opt-out as well, I am a non-US citizen so I am a bit scared to cause any fuss considering the general friendliness of the US federal government.

I was physically searched all three times passing security, opting to do so in public rather than in a booth as I prefer to be violated where there are witnesses. All-in-all, the TSA treated me fairly well considering the circumstances apart from in San Francisco where a passing female TSA agent smirked and commented saying "Come on, he is enjoying it!", laughing as she passed me by. That, that was a bit of a punch below the belt...

The Dutch are now trying out the same scanners and they were not even remotely friendly when you opt-out. My plead to you over there in the states is to stop this madness before it spreads. Just as with liquids and all else, the US has a great influence on the rest of the world and in this case, I fear, for the worse.

> All-in-all, the TSA treated me fairly well considering the circumstances apart from in San Francisco where a passing female TSA agent smirked and commented saying "Come on, he is enjoying it!", laughing as she passed me by. That, that was a bit of a punch below the belt...

Yeah, TSA is a jobs program for the otherwise unemployable.

I opted-out last year while I was there. I've only ever seen myself choose that.

The past few times I've flown the agents have automatically redirected me to the regular metal detector rather than the backscatter machines. All you need to do is be holding an infant. If you don't have one of your own, maybe borrow one from a friend.

US should have a different agency that takes comments and complaints about the TSA and then sends a periodical report to Congress about it. From my understanding, right now the complaints are sent to TSA themselves? That's pretty much pointless then.

Are you sure that's accountable and transparent enough? Perhaps we should establish a third agency to handle complaints regarding the second agency and ensure that everything is aboveboard.

We could have one agency to plan the TSA's mission, a second to carry out the plan, and a third to review complaints.

You joke, but http://www.improbable.com/ig/winners/#ig2012

  LITERATURE PRIZE: The US Government General Accountability Office, for
  issuing a report about reports about reports that recommends the preparation
  of a report about the report about reports about reports.

Never try to out-do the government at bureaucratic recursion.

The do have: http://www.house.gov/representatives/find/

And I would encourage you to use http://PostCongress.io to express your displeasure to your representative.

Seriously. We should have a Government Accountability Office to keep an eye on things like this.

If you have to raise your hands over your head like you're some kind of perp, at least throw two bird fingers while they're taking the xray. You want them to see that you don't have any explosive devices on your middle fingers.

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