TSA lawlessly snubs federal court ruling for 1 year! Interview with Jim Harper

The TSA has ignored a federal court ruling for a year, pleading poverty, while it continually dumps money into other projects. Please sign the petition ordering the TSA to follow the law! Here's an interview with Jim Harper who started the petition.

Security and privacy guru Bruce Schneier said it is important and pointed toward Jim Harper's post TSA Should Follow the Law on Cato @Liberty. And it is very important since a year has passed but the TSA continues to snub the U.S. Court of Appeals which ordered a notice-and-comment rulemaking about the body scanners aka "strip-search machines." Harper reported that the TSA failed to "to publish its policy in the Federal Register, take comments from the public, and issue a final rule that responds to public input." The alleged reason is because the TSA says it's too expensive and too complex to do a rulemaking in this area. Oh really? Funny cause the TSA still managed to dump massive funds into the PreCheck program.

Harper started a petition on Whitehouse.gov which "says the president should Require the Transportation Security Administration to Follow the Law!" 25,000 signatures are needed. There are currently more than 10,000 signatures. I implore those of you who think the TSA is out of control to sign it. The petition states:

In July 2011, a federal appeals court ruled that the Transportation Security Administration had to conduct a notice-and-comment rulemaking on its policy of using "Advanced Imaging Technology" for primary screening at airports. TSA was supposed to publish the policy in the Federal Register, take comments from the public, and justify its policy based on public input. The court told TSA to do all this "promptly." A year later, TSA has not even started that public process. Defying the court, the TSA has not satisfied public concerns about privacy, about costs and delays, security weaknesses, and the potential health effects of these machines. If the government is going to "body-scan" Americans at U.S. airports, President Obama should force the TSA to begin the public process the court ordered.

Jim Harper was kind enough to answer a few questions for me:

In regard to your petition to require the TSA to follow the law, has the EFF, ACLU, CDT or anyone else joined with you in this endeavor?

Harper: I had EFFers and ACLUers on the email I sent out when I proposed/announced commemorating the one-year anniversary of the court's ruling with a series of efforts. I think both orgs were represented on a call we did. There's no formality to it, and there's nobody "on" or "off" the team. An employee at a large software company was the first to sign after I created the petition, and a former ACLUer was the second!

EPIC has, is that correct, based on the court filing [PDF] you linked to in the Cato @Liberty post? 

Harper: Yes, of course, I talked with EPIC about this because I figured they would (and they are indeed going to) file a motion with the court asking the court to enforce its year-old order. That will go in Monday, I believe.

You wrote: "But CEI's Ryan Radia, at work on a legal brief in the case, notes that the TSA has devoted substantial resources to the PreCheck program during this time, rolling it out to additional airports. How can an agency pour resources into its latest greatest project, yet claim poverty when it comes to complying with the law?" 

Harper: CEI is organizing an amicus brief that will be filed with the court next week, backing EPIC's motion and adding more arguments. I knew they were interested in getting involved with the TSA, and I encouraged them to do it now, in this fashion. I think Ryan's point was really good. TSA pleads poverty to the court while it spends money on new programs.

What do you have to say about this, the coming "mind-reading" helmet machines, or more specifically the portion that deals with the coming laser scanners that can scan you from 164 feet away? These molecular-level scanners are portable, will be easy to deploy and a person would not even know they were being scanned. Do you think this is where TSA/DHS is going to by 2013 while we wrestle for years over the original body scanners?

Harper: Someone sent me the Gizmodo article the other day, and --- trying to make myself look like a smarty-pants --- I wrote back. "Cool. I just briefed the Supreme Court on that last week." But I did include it in my brief a program to use Raman spectroscopy to discover chemicals in vapor, and a program to "read" people's biological cues for evidence of harmful intent. Page 8 in the brief: http://www.cato.org/publications/legal-briefs/florida-v-jardines 

These are both Fourth Amendment "searches" under the reading of the law that I argued for (in a dog sniff case). I think these technologies are not likely to be deployed, much less be useful for anything, quite as quickly as much of the reporting suggests, but when they are ready for prime-time, I want Fourth Amendment law to be there to meet them.

There are not many answers regarding this scanning technology either. Do you agree with Privacy SOS that we need a "privacy revolution"?

Harper: I doubt that there will be a privacy "revolution," sorry to say. The TSA is so obnoxious at airports that it is a bit of a special case. When the TSA can scan people without inconvenience, I won't be able to generate the kind of interest and energy that has gone into my TSA petition. The petition is part of my project (obviously joined informally by many confederates) to make the airport a law-bound environment again. There is a constitution, specifically a Fourth Amendment that should apply. Right now, we're trying to make sure that the Administrative Procedure Act applies so that the TSA has to weigh all the variables in its policy. Then the courts will have the information they need to really decide whether the TSA is conducting Fourth Amendment searches. It is, but the courts aren't ready to grapple with that. They're conservative and risk averse, just like politicians and the major media. We're way ahead of them --- every single person who has signed that petition!

Dear readers, as you probably know, I'm no fan of the out of control TSA mostly because it so trashes the Fourth Amendment. For a year, it has ignored the federal court ruling. As Harper wrote, "The public deserves to know where the administration stands on freedom to travel, and the rule of law. While TSA agents bark orders at American travelers, should the agency itself be allowed to flout one of the highest courts in the land? If the petition gets enough signatures, we'll find out."

We still need a little under 10,000 signatures, so I ask you again, please sign the petition! It will ask for an email address for confirmation, but as Harper pointed out, "If you're quite concerned about sharing an email, you can create a throwaway email on AOL or Yahoo! and use it once."

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