TSA reform is high on legislative agenda for 2011

Washington may be about to offer air travelers who are frustrated by the Transportation Security Administration’s new screening techniques a little relief.

Several initiatives to reform the beleaguered TSA will be on the legislative agenda when the 112th Congress convenes on Jan. 3., according to experts.

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Perhaps the most high-profile of the proposed bills is Ron Paul’s American Traveler Dignity Act of 2010, which would deny immunity to any federal employee who subjects a person to any physical contact or scanning.

“Enough is enough,” Paul, a Texas Republican, told Congress when he introduced the bill last month, adding that federal employees should be held to the same standard as everyone else, when it comes to touching another person.

“If you can’t grope another person, and you can’t X-ray people, and take nude photographs of an individual … why can the government?” he asked. (See video, above.)

If passed, the law could effectively put an end to full-body scans and pat-downs at the airport, although there’s no telling how TSA might change its techniques in response.

“Ron Paul’s bill, or a bill that has very similar language, stands a very good chance in the next congress,” says Frank Torres, a communication strategist in Maitland, Fla., who follows aviation issues. “The Republican majority will certainly help. And with senior leaders calling for changes, it’s a very real possibility.”

A related bill is also making its way through the Senate. The proposed law, introduced earlier this month by Sen. Charles Schumer (D-NY), would make it illegal for anyone to record or distribute images made by full-body scanners.

“Anyone who would try to use these images for purposes other than security should be severely punished,” he said.

However, the law wouldn’t stop the agency from using full-body scanners or prevent TSA from using its controversial “pat-down” techniques on air travelers who decide to opt out. But they might prevent a rerun of what happened earlier this year in Orlando, when U.S. Marshals in a Florida Federal courthouse saved 35,000 images on their scanner – pictures that were obtained under the Freedom of Information Act and published online.

Congress has also made numerous non-legislative demands of the TSA since the scanning and pat-down controversy, including requests for more information about its screening procedures.

In a letter to TSA Administrator John Pistole last month, Transportation and Infrastructure Committee Republican leader John Mica and Aviation Subcommittee top Republican Tom Petri called for a review of the pat-down procedures.

“We have concerns that TSA is not achieving the proper balance between aviation security and the privacy rights of United States citizens,” they wrote.

Lawmakers are also concerned about the safety of the new body scanners. In a missive to TSA Administrator Pistole, Rep. Rush Holt (D-NJ), the co-chairman of the Congressional Biomedical Caucus, said he worried about the radiation exposure from the machines.

“Additionally,” he wrote, “it appears that these devices cannot detect explosives or other dangerous objects inside of body cavities.”

Rep. Holt called on the TSA to provide him with reports from independent entities that have validated the effectiveness of the full-body scanning systems to detect the full range of explosive threats known or anticipated.

If Congressional reviews or new laws don’t address the American traveling public’s disenchantment with the new screening procedures, then there are two additional options. One is for airports to opt-out of federal screening, using private companies to handle security (17 airports currently have private screeners). Several American airports, including Orlando’s busy international airport, are reportedly considering a switch.

Frequent travelers believe that might lead to better service. David Dillinger, a commercial airline pilot, says the private screeners working in airports such as Kansas City are more efficient than the federal screeners.

“They don’t harass you,” he says. “They don’t have a chip on their shoulder.”

Since the pat-down controversy, officials from several other airports have expressed an interest in opting out of the federal screening program. Sanford International Airport, in the Orlando suburbs, is switching to the Screening Partnership Program, and Orlando International Airport is reportedly considering it, too.

But opting out doesn’t mean passengers would skip either the pat-downs or full-body scanners that have upset so many air travelers recently.

“If an airport applies and is accepted into the Screening Partnership Program program, they receive the same screening from a private company instead of TSA officers,” the TSA explained in a blog post shortly after Sanford’s decision to go private. “That’s the only difference.”

Some airline passengers are calling for Congress to go a step further and eliminate TSA entirely. Veteran policy analysts are doubtful that will happen in the next two years.

“There is no chance Congress will eliminate TSA,” says James Burnley, the Transportation Secretary from 1987 to 1989 and a partner with Venable LLP in Washington. “But I do expect the next Congress to engage in much more active oversight of TSA.” Burnley believes the only law with a shot at getting passed is the current Senate bill limiting the distribution of scanned images.

And what if Congress can’t pass meaningful TSA reform? States may get involved.

The New Jersey legislature has already appealed to federal lawmakers to look into the TSA’s screening practices. Michael Doherty (R-23rd district), told a recent news conference he believes there are “constitutional violations” taking place at the airport, as well as violations of state law. He’s helped introduce resolutions in the Senate and Assembly that ask Congress to review the TSA screening process.

If TSA-watchers can agree on one thing, it’s that there will be a lot of talk in the next Congressional session about the role of the TSA – and maybe some action.

“Since the next congressional session is comprised of arguably more conservative members than the current members, I think that these new members will be less inclined to overturn the TSA’s authority,” says Elizabeth Cohee, an Oakland, Calif., attorney and TSA observer.

“No one likes the current screening options,” she adds, “but no one wants to be the person responsible if and when the next underwear bomber successfully boards an American plane.”