TSA can now require full-body scans, trumping pat-down option

Bart Jansen | USA TODAY

Show Caption Hide Caption TSA cuts body scan opt out Under new direction issued last week the TSA has ended a policy that allows any passenger to opt out of an electronic screening.

Just in time for the holidays, the Transportation Security Administration changed the rules for its full-body scanners to find out who’s naughty or nice at airport checkpoints.

The change is aimed at safeguarding airline security at a time of heightened tensions over terrorism. But legal and security experts complain that TSA rules are ambiguous and that changes come without the opportunity for public comment.

TSA announced Friday it would require full-body scans for some travelers rather than allowing everyone the option of a pat-down search instead. The scanners can detect non-metallic weapons hidden beneath clothing, such as the plastic explosives hidden in the underwear of a man who attempted to detonate a bomb about a flight to Detroit on Christmas Day in 2009.

“Generally, passengers undergoing screening will still have the option to decline a (full-body) screening in favor of physical screening,” said Bruce Anderson, a TSA spokesman. “However, some passengers will be required to undergo (full-body) screening if warranted by security considerations in order to safeguard transportation security.”

"This will occur in a very limited number of circumstances where enhanced screening is required," Anderson added. "The vast majority of passengers will not be affected."

The change is controversial.

“We’re in bizarro-world with TSA,” said Marc Scribner, a research fellow at the Competitive Enterprise Institute.

The institute has sued TSA in federal court to force the agency to go through a formal rulemaking procedure to continue to use the body scanners, which went into service in 2007. Such a process would allow the public to comment on how and when the machines are used. A July court filing said more than 740 scanners are installed in 160 airports.

TSA received more than 5,500 comments when it proposed a rule in 2013 dealing with the scanners, but TSA never completed that process. As part of the legal case, TSA is now scheduled to publish a final rule in March.

After your groping, our TSA staff may now *insist* on looking. Do not resist a mandatory porno scan. v @b_cranz pic.twitter.com/l8h2BmrAvZ — U.S. Dept. of Fear (@FearDept) December 23, 2015

Scribner said the change Friday is another example of TSA ignoring the law governing how federal agencies should adopt regulations, and leaves travelers uncertain about their rights under the rules.

“It wasn’t clear before what the policy was. Now it’s even less clear,” Scribner said. “I don’t know if they could have done anything worse.”

Fred Cate, an Indiana University law professor, said changing a policy that travelers already don’t understand will lead to greater confusion. And granting TSA officers greater discretion at checkpoints is an invitation to more complaints about how travelers are chosen for pat-downs, he said.

“Anything that adds more complexity likely weakens security,” Cate said. “Almost anywhere else in government or industry, if you don’t do things by the rules, it’s something people can complain about. Here if you don’t do something by the rules, they just say you don’t know what the rules are or we can’t tell you.”

George McHendry, an assistant professor of communications at Creighton University, questioned who would be chosen for the full-body scans. The change could bring TSA more criticism from disabled or transgender travelers who may prefer pat-downs to resolve security concerns and avoid delays, he said.

“The pat-down becomes a way for them to get you through security with minimal resistance,” McHendry said. “It’s been a pretty good pressure valve for that.”

TSA began deploying full-body scanners in order to identify objects hidden under layers of clothing.

The machines came in two versions. One machine, known as the backscatter scanner, had raised concerns about radiation exposure. It's use was ultimately discontinued because it produced near-naked images of travelers. The remaining version produces a block-drawing of the traveler with a box marking the area where it detected an unusual object.

A National Academies of Sciences study in September found that the backscatter machines in use from 2008 through 2013 didn’t overexpose travelers to radiation. Travelers were exposed to one-tenth the radiation limit set by the American National Standards Institute and Health Physics Society, according to the study.