The Stripping of Freedom: EPIC vs. DHS on TSA Body Scanners

The Department Of Homeland Security finally filed an its answer brief in EPIC’s suit to suspend TSA’s controversial airport body scanner program. The Electronic Privacy Information Center (EPIC) argued that body scanners are “unlawful, invasive, and ineffective,” but DHS responded that EPIC’s claims are “unfounded” and “meritless.”

The EPIC opening brief [PDF] outlined several violations and asked the Court to halt all use of DHS naked body scanners. EPIC brought claims under the Fourth Amendment, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

I’ve made it clear before that I am no attorney, but let me save you from yawnsville and reading DHS’s answering brief [PDF]. The 86-page PDF goes on and on about how TSA properly processed EPIC’s petitions for rulemaking, then goes further to insist there is no such “rule” and why it doesn’t apply to TSA, BUT just in case the Court decides TSA did issue a rule, that rule is exempt. Furthermore, DHS explains why the Court should not stop TSA from using the naked body scanners until the legality of it all is decided.

• TSA Properly Processed Petitioners’ Petitions For Rulemaking.
• TSA Has Not Issued Any “Rule” As Defined In The Administrative Procedure Act.
• If It Is a Rule, TSA’s Decision to Implement AIT More Widely, And to Utilize It As A Primary Screening Method, Constitutes an Interpretative Rule.
• TSA’s Decision Regarding Use of AIT Screening Procedures Reflects a General Statement of Policy.
• TSA’s Decision Regarding Use of AIT Screening Procedures Represents A Rule of Agency Organization, Procedure, or Practice.
• Assuming Arguendo that the Case Is Remanded For Further Proceedings, The Court Should Not Prohibit Use of AIT As a Primary Screening Mechanism While The Matter Is Pending Before the Agency.
• Assuming Arguendo That TSA Has Issued A Rule, That Rule Is Exempt From Notice And Comment Rulemaking.

At this point, it becomes less boring and more aggravating as DHS poo-poos away Constitutional rights like the Fourth Amendment. DHS dismissed the Privacy Act and rejected the idea of scanners violating the Video Voyeurism Prevention Act. DHS has repeatedly attempted to delay resolution of EPIC’s lawsuit, but the Court has scheduled oral argument for March 10, 2011.

EPIC was fast to file a reply brief. In regards to opting out, EPIC wrote, “Moreover, when travelers select the patdown, they often describe it as ‘coercive’ or ‘retaliatory.’ This EPIC [PDF] might be worth your time to read, as EPIC states how DHS “action has violated, and continues to violate, the constitutional and statutory rights of American air travelers.”

There was a time when Americans could not believe the audacity of some governments who would publically pronounce a LIE but call it the truth. We would feel sorry for people who lived in those sorts of countries where falsehoods were formally declared reality, wondering if they knew the TRUTH or believed the LIE cause the government said it was true again and again until the people might believe it. This is what is happening in America.

An example is the TSA memo issued by TSA Director John Pistole. Some people called it propaganda and some people called it a bold-faced lie when the memo claimed “we saw a tremendous outpouring of public support over the Thanksgiving holiday.” The truth is that naked body scanners were not used over the holiday weekend, with the TSA reverting back to metal detectors and avoiding enhanced pat-downs. Pistole also wrote, “TSA has been recognized for our wise financial stewardship of one billion dollars…”

According to The Stripping of Freedom conference, marked by the Twitter hashtag of #ScanTSA, “DHS has spent $360,000,000,000 since 9/11.” And all those billions for what? Security theater. Former presidential candidate Ralph Nader called the TSA a “basketcase.” Security expert Bruce Schneier said, “Security policy based on fear doesn’t work.” Yet America seems to become more paranoid while slowly stripping citizens of their rights. TSA is a perfect example of this.

By the way, did you know “Gate Rape” was the Word of the Year for 2010?

Ben Franklin wrote, They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. It’s commonly paraphrased as “He who gives up freedom for safety deserves neither.”

The loss of civil rights happen slowly, so we are not supposed to take notice. Once our freedoms are gone, they will not be given back to us. Chip Pitts, co-plaintiff in the EPIC suit, stated, “We’re sleepwalking into a surveillance society.”

Like this? Check out these other posts:

• All of today’s Microsoft news and blogs
• FBI Spied and Lied, Misled Justice Department on Improper Surveillance of Peace Groups
• Stop Freaking Out About Terrorism. Did TSA miss that memo?
• CA Court Rules Smartphones Can Be Searched Without A Warrant
• SWAT Team Swarms Bar, Demands to See Alcohol Permit
• Feds Tracking Americans’ Credit Cards in Real-Time Without a Warrant
• Privacy Report Card: State Secrets Earn Obama a Grade of “D” in Civil Liberties
• Full-Body X-Ray Scanners Driving Down A Street Near You?
• Police State of Wiretapping the Web: Who Do THEY Want to Watch?
• Photographers Are NOT Terrorists
• Scary: Police State Comes to Walmart via DHS Videos

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