Appeals court: expect DHS to begin public comment process for body scanners by end of March 2013
By Madison Ruppert
Editor of End the Lie
In yet another ludicrous decision from a U.S. Court of Appeals, in this case the D.C. Circuit Court of Appeals, the court issued a laughable ruling on an Electronic Privacy Information Center (EPIC) petition regarding the flagrant disregard of the July 2011 court order on the part of the Department of Homeland Security (DHS).
Keep in mind, the DHS and their child agency, the Transportation Security Administration (TSA), have completely ignored the court ruling with seeming immunity even when a Congressional report has called on the TSA to review the health risks and privacy concerns surrounding the naked body scanners.
One must also take into account the fact that DHS and the Defense Advanced Research Projects Agency (DARPA) are working on an entirely new generation of airport security technology, when the TSA hasn’t even held the required public comment period for the current generation of technology.
The government has been incredibly brazen about their defiance of the required public comment process, saying that they might “finalize documents” by February of 2013, according to EPIC.
This is brazenness is made even more offensive considering that the Competitive Enterprise Institute (CEI) submitted an amicus brief supporting the EPIC petition on behalf of CEI along with Robert L. Crandall (former president and chairman of American Airlines and “industry legend”), the National Association of Airline Passengers, the Electronic Frontier Foundation, the Center for Individual Freedom, the Cyber Privacy Project, the Center for Financial Privacy and Human Rights, Digital Liberty, Liberty Coalition, and the Rutherford Institute.
See the video embedded below (or click here to download in M4V format), from July 2012, to learn more about the issue. The video features the Director of the EPIC Open Government Program, Ginger McCall, Land-use and Transportation Policy Analyst for CEI, Marc Scribner, and Senior Fellow at the Cato Institute, John Mueller. Jim Harper, the Director of Information Policy Studies with the Cato Institute moderated the discussion.
EPIC urged the court to call on the Secretary of Homeland Security to hold the public comment process or suspend the program entirely, which, honestly seems like a bit of an overly optimistic request given the history of the TSA.
CEI apparently saw the decision as somewhat promising since Marc Scribner wrote, “So while the D.C. Circuit denied EPIC’s petition that requested that the court order the TSA to begin the legally required rulemaking process in 60 days, the last sentence effectively requires the agency to begin the process no later than the end of March 2013.”
The section of the ruling Scribner is referring to is:
ORDERED that the petition for writ of mandamus be denied in light of the Government’s representation that “the process of finalizing the AIT Rulemaking documents so that the NPRM may be published is expected to be complete by or before the end of February 2013.” Accordingly, we expect that the [notice of proposed rulemaking] will be published before the end of March 2013.
That being said, Scribner agreed with my disappointment in rejecting EPIC’s petition in writing, “While we hoped the notice-and-comment period would be opened sooner, we view the court’s decision as a victory.”
“The TSA’s dilatory tactics that have successfully prevented public and independent expert involvement in the AIT scanner regulatory process, as required by the Administrative Procedure Act, will no longer protect it from outside scrutiny,” Scribner added.
Let’s just hope Scribner is right and the TSA will not be able to use these tactics in the future because it is nothing short of disturbing to see how the government is openly flouting the court’s decision.
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