
Court OKs Airport Body Scanners, Rejects Constitutional Challenge - llambda
http://www.wired.com/threatlevel/2011/07/court-approves-body-scanners/
======
Osiris
I continue to believe that these screening processes are simply theatre and do
little to actually improve security of passengers.

For example, recently in the news (see [http://www.csmonitor.com/USA/Latest-
News-Wires/2011/0707/TSA...](http://www.csmonitor.com/USA/Latest-News-
Wires/2011/0707/TSA-warning-describes-surgically-implanted-bombs) ) 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.

~~~
smhinsey
I have long thought that the security lines themselves are far more at risk
than the actual planes. If you fly through any relatively large airport during
a busy time, or even just an unlucky time, you'll sometimes see lines with
hundreds of people in them (thousands if you happen to be somewhere like
O'Hare during a holiday weather delay). In IAD or DCA there are massive
terminals with glass ceilings and windows with large snaking security lines.
The carnage from even a small explosion would be immense when the structure
itself potentially serves as shrapnel.

~~~
anigbrowl
This is actually a somewhat unlikely scenario. Just as there is 'security
theater' there is also 'terrorism theater' - an act of destruction that gains
worldwide attention and draws attention the particular cause the terrorist
cares about and wants publicity for, be it positive or negative. The essential
goal of terrorism is to force people to pay attention by causing something so
horrifying that it is guaranteed to get news coverage. This is much more
effective against civilians and in peaceful countries, because lots of
journalists will show up with cameras - unlike a war zone, where only a few
will venture in and where the coverage is likely to vary widely in subject
matter and tone. Airplanes and other forms of mass transit are particularly
effective because they frighten people enough to create a lot of political
pressure, and they're visually spectacular. Likewise bombs in popular or
famous locations.

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.

~~~
pyre

      > If the goal of terrorism was simply to kill as many
      > people as possible
    

The goal is to terrorize. If a significant amount of people either stop flying
altogether, or at least are afraid/paranoid/looking over their shoulder while
in the terminal, then the goal would seem to have been served.

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.'

~~~
anigbrowl
Not so. I've lived in a country with an ongoing low-level terror campaign and
people just get used to it. Everyone knows the risk and nobody likes it, but
life goes on. I've seen a car bomb explode across the street from me, which
was pretty scary, but it doesn't paralyze people the same way because it's
simply not as dramatic.

------
law
I didn't read the news article; I don't have time for sensationalist tripe.
Instead, I went straight to the source:
[http://www.cadc.uscourts.gov/internet/opinions.nsf/0/B310047...](http://www.cadc.uscourts.gov/internet/opinions.nsf/0/B3100471112A40DE852578CE004FE42C/$file/10-1157-1318805.pdf)

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.

~~~
law
tl;dr

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.

~~~
jdp23
And make good use of the commenting period.

------
geuis
Gonna make a rare politic statement here:

Who's up for a sit-in protest at SFO?

~~~
a3camero
I was happy to return to my domestic airport security after coming back
through SFO. This type of "security" is alienating foreigners.

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.

~~~
ams6110
These security procedures have got to be having a depressing effect on
domestic air travel also. I know that I now fly only if I absolutely have to.

~~~
jdp23
Yes it has; the specific amount isn't known. Back in the early 2000s when they
changed the checked baggage search policy, it's estimated that it had a 6-8%
affect on travel -- there are some nice papers from profs at Cornell who
analyzed it.

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.

