A Washington, DC appeals court has given the TSA until the end of March to hold public hearings on its controversial airport body scanners, more than a year after first issuing the order. The court's latest order, handed down Tuesday, comes in response to a constitutional challenge from the Electronic Privacy Information Center (EPIC), which has accused the TSA of filibustering orders to comply with federally-mandated "notice and comment" protocol. Citing the TSA's 14-month delay, EPIC had argued for a reversal of the court's earlier decision to allow full body "nude" scanners at airport security checkpoints.
The appeals court first ruled on the case in July 2011, when it dismissed EPIC's claims of unconstitutionality, but ordered the TSA to "promptly" comply with the Administrative Procedures Act, which requires agencies to hold hearings and take public comment prior to introducing any policy that could significantly impact a citizen's rights. The court determined that the TSA violated federal law by introducing its body scanners without a public hearing, but declined to penalize the agency for doing so. To date, the TSA has yet to even begin the process of public engagement.
The court rolls over
Over the course of the past year, the TSA has denied accusations of stonewalling, pointing instead to the complexity and steep costs associated with notice and comment procedures. The agency also argued that holding a 90-day public comment period would weaken its ability to swiftly counteract "ever-evolving threats" to national security.
When the court finally demanded an explanation for the delay in August, the TSA said it was still waiting for the Department of Homeland Security and the Office of Budget and Management to approve the release of relevant documents, and that it would open its policy to public comment by the end of February 2013.