It’s been almost five years since the Transportation Security Administration quietly began installing its so-called Advanced Imaging Technology (AIT) — better known as full-body scanners — at airports nationwide. And now the government wants to know what you think of the machines.
In 2011, the U.S.The Court of Appeals for the District of Columbia Circuit ordered the TSA to engage in what’s known as notice-and-comment rulemaking on its use of the technology. You can share your opinion on the Notice of Proposed Rulemaking at the Federal Register Web site until June 24.
In other words, air travelers can finally express their opinions to the government about the controversial scanners and the way they’re used at airports. Depending on how the public responds, the TSA could either double down on its multibillion-dollar scanner program, or it could decommission the machines and impose alternate standards, including using metal detectors and explosive-trace detection screening.
The TSA hopes that passengers will approve of its current screening practices. “AIT is the best technology available to detect both metallic and non-metallic objects hidden on a passenger. Agency spokesman David Castelveter says, “It’s an important part of TSA’s multi-layered security efforts.”
Still, the agency assigned to protect America’s transportation systems promises to listen and respond to the public comments. “TSA will review and analyze the public comments to develop a final rule related to the screening process using AIT,” says Castelveter.
Critics question both the agency’s claims and its sincerity
“This technology raises significant privacy problems,” says Khaliah Barnes, an attorney for the Electronic Privacy Information Center (EPIC). “When TSA deployed the body scanners, it initiated one of the most sweeping, most invasive and most unaccountable suspicion-less searches of American travelers in history.”
EPIC has repeatedly challenged the use of body scanners in court, arguing that the technology is ineffective and violates a passenger’s individual privacy rights. The court-ordered public comment period is a direct result of EPIC’s suit against the Department of Homeland Security.
Other activists have raised concerns about the health effects of the machines, claiming that AIT technology hasn’t been adequately tested. TSA insists that the scanners are safe for all passengers and meet national health and safety standards.
But mostly, a coalition of privacy advocates is opposed to the way the scanners are used at the airport, with passengers forced to choose between walking through the machine or facing what’s called an “enhanced” pat-down. Many travelers complain that these manual exams by TSA agents are abusive and punitive. The TSA states that its screeners respect the “important” rights of those passengers who receive pat-downs, and the “vast” majority of passengers do not undergo this procedure.
What are the options?
The rulemaking asks the public to comment on four possible changes in the way passengers are screened. First, TSA could turn the clock back to before 2008 and use metal detectors as the primary passenger screening technology. Security personnel would resolve any alarms with a pat-down. This option is already available without incident to a sizable group of passengers, including those who qualify for TSA’s expedited Pre-Check screening, airline crew members, and military personnel on duty.
A second option would see the TSA return to using metal detectors as the primary screening method but supplement its screening by conducting a pat-down on a randomly selected portion of passengers.
Another possibility: going back to metal detectors as a primary screening technology and conducting explosive trace detection tests on random passengers. Most passenger-rights advocates prefer this option. It ends both the invasive scans and eliminates the problematic pat-downs.
The last option is to maintain the current system. It involves using full-body scanners as the primary screening method and addressing alarms with a pat-down. The TSA prefers this method. They argue that it’s the most effective way to screen passengers and prevent another terrorist attack.
“The public has a unique opportunity to affect the TSA’s future actions,” says EPIC’s Barnes. “It is absolutely imperative that they comment on the TSA’s proposal.”
Air travelers favor reform
Some passengers believe that the current system works. The TSA reports that about 99 percent of air travelers opt for the full-body scanners rather than choosing a pat-down. They also reference a CBS poll indicating that four out of five Americans support the use of Advanced Imaging Technology at airports nationwide.
“I choose body scans whenever available,” says Michael Menaker, a retired advertising executive from Louisville, Colo. “It’s much quicker and easier than the pat-down I always get. I have an artificial hip, and the scanners speed me through security with less hassle.”
Larry Edward, one of several hundred commenters on the rulemaking site, disagreed. “No more scanners,” he said in a brief statement. “I will do anything to avoid flying because of them and the invasive pat-downs that are occurring at the airports.”
A recent review of the comments indicated an overwhelming majority favor discontinuing AIT technology. They also support ending the TSA’s practice of conducting pat-downs resembling those in prison for passengers who trigger an alarm or choose to opt out.
Downplaying the rulemaking
The TSA is trying to keep these comments to a minimum, say observers. They refer to the TSA’s blog post, which was published nearly two weeks after the rulemaking release. However, it was swiftly deleted shortly after being posted. Following inquiries from travelers, including this reporter, the TSA republished the notice a week later. This time, it didn’t include links for readers to leave comments.
This marks the first time the TSA has defined aspects of the screening process. It also offers passengers an opportunity to comment. Privacy activist Edward Hasbrouck notes this.
“In this light, it’s likely that one reason the TSA has been so resistant to a public rulemaking process on AIT is the likelihood that it would open the door to renewed demands from consumer, privacy and civil liberties groups for a similar rulemaking on other aspects of the screening process,” he says.
Lack of transparency
The agency’s coyness, combined with what critics say is a lack of transparency, has left many doubting that the TSA will do anything meaningful in response to the public comments.
For some air travelers, no matter what happens, it will be too little, too late. They claim that over the past five years, the agency has subjected them to unconstitutional searches. This has resulted in violations of their civil rights and assaults on their dignity when flying. (Here is our guide on how to handle the TSA when you travel.)
Nancy Nally, a website publisher from Palm Coast, Fla., expressed her disappointment. She’s most frustrated by the TSA’s tardiness in responding. This rulemaking should have happened in 2006, not 2013, she says.
“Why close the barn door after the horse is gone?” she asks.