Friday, July 29, 2011

Cover Up!


This week, the Transportation Security Administration ("TSA") announced the roll-out of a new software technology that will ... well, let's just say add a layer of dignity to the layer of security that full-body scanners at airports were installed to provide at the nation's airports in 2007.

Specifically, at Reagan National Airport, outside Washington, D.C., TSA scanners will now inspect images of airline passengers that display as generic outlines of a human body (e.g., "gingerbread man") instead of virtually naked passenger-specific images that generate serious privacy concerns.  Additionally, TSA no longer will require a separate TSA officer to view the image in a remotely located viewing room.

While this may be welcome news for airline passenger privacy proponents, there have been reports that some full-body scanners emit radiation levels 10 times higher than expected.  Indeed, a group of university scientists who claim expertise in imaging and cancer are questioning the safety of full-body X-ray scanners—scanners that Rapiscan, the firm that makes the machines, has argued are safer than eating a banana, which contains potassium that is very slightly radioactive.

Meanwhile, on the legal front, privacy advocates recently gained a limited victory in challenging the process through which the TSA decided to use advanced imaging technology instead of magnetometers. 

Specifically, in Electronic Privacy Information Center v. Dept. of Homeland Security, (D.D.C. July 15, 2011), the United States Court of Appeals for the District Court recognized that federal law requires anyone seeking to board a commercial airline flight must be screened by the TSA in order to ensure s/he is not "carrying unlawfully a dangerous weapon, explosive, or other destructive substance."  But, Congress has left it to the TSA to prescribe the details of the screening process.  In this case, the TSA failed to comply with a requirement of the Administrative Procedure Act ("APA"), which requires TSA to publish and solicit and consider public comment about its decision to screen airline passengers by using advanced image technology ("AIT") instead of magnetometers.

It is a limited victory, for sure, as the TSA was simply instructed by the Court to comply with the public notice requirement.  The Court otherwise rejected arguments that AITs violated the Fourth Amendment of the United States Constitution, the Video Voyeurism Protection Act, or the Privacy Act.

Count on this topic getting more exposure.

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