Lawsuit: TSA needs formal regulations for full-body scanners

Bart Jansen | USA TODAY

WASHINGTON – The Transportation Security Administration would have to develop formal regulations for its contentious full-body scanners, under a federal lawsuit filed Wednesday.

Three groups representing limited government and civil liberties asked the U.S. Circuit Court of Appeals for the District of Columbia to order TSA to propose a regulation governing the use of the machines within 90 days.

This is the latest filing in a lengthy court battle since TSA began deploying the machines in 2007. More than 740 scanners are installed in 160 airports, according to the lawsuit. The machines detect objects within or under the clothing of travelers who have their arms raised.

In 2011 -- four years ago to the day -- the appeals court had ruled in an earlier case involving the Electronic Privacy Information Center that TSA was required to develop a formal regulation.

But after publishing a proposed regulation in March 2013, TSA never followed up with a final rule.

The latest lawsuit is a demand for action from the Competitive Enterprise Institute, which advocates for limited government, and the National Center for Transgender Equality and the Rutherford Institute, which advocate for civil rights.

"For four years the TSA has flouted the court's order, preventing the public and outside experts from scrutinizing their actions as required under the law," said Marc Scribner, a CEI research fellow named as a petitioner in the case. "This lawsuit aims to enforce that court decision and bring much needed accountability to an agency plagued by lawlessness."

TSA officials have defended full-body scanners through years of criticism.

An early version of the machines produced near-naked images of travelers. But programming has been updated to produce a cartoon shape with marks boxes for possible contraband.

The Department of Homeland Security's inspector general found that TSA officers failed to detect banned items 67 out of 70 times in a test. TSA Administrator Peter Neffenger, who was confirmed last month, has said he would work to reduce that vulnerability.

But TSA officials have said full-body scanners are crucial for detecting non-metallic explosives such as the 2009 case of the underwear bomber. Full-body scans are faster than a pat-down, to keep security lines moving.

Harper Jean Tobin, policy director for the transgender group, said travelers who are different will bear the brunt of relying on body scanners and pat-downs. Transgender travelers typically experience greater scrutiny at the airport because of their appearance, identification or physical features, according to the lawsuit.

"The public deserves clear rules that address the effectiveness and the privacy impact of practices that affect millions of Americans every day," Tobin said.