An appeals court panel in Washington, D.C., ruled today that the government jumped the gun by not seeking public feedback before rolling out airport scanners that see through travelers’ clothes. Unfortunately for those opposed to these devices, the scanners are not going anywhere.
The ruling comes as the result of a 2010 lawsuit filed by the Electronic Privacy Information Center, which says the government overstepped its own procedures by introducing backscatter and millimeter wave scanners without first seeking public comment.
The TSA has argued that it didn’t need to seek public comment on the scanners because it wasn’t a legislative decision. However, the appeals court ruled that the new scanners are so different from previous detectors — and so potentially invasive of personal privacy — that it they merited the comment period.
“It is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not,” Wrote Judge Douglas Ginsburg.
But, adds Ginsburg, “Due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it.” The court pointed out that the much-discussed pat-down is still available to those wishing to opt out of the scanner.
The court now expects the TSA to “act promptly” in soliciting public comment.