A challenge to the Transportation Security Administration’s controversial full-body scans took a crash landing Friday when a federal court of appeals upheld the screenings against a slew of constitutional and statutory challenges.

Advanced Imaging Technology (AIT) scans use low-intensity X-rays or radio frequencies to map an undressed image of air travelers as they pass through security. When the TSA deployed 486 scanners for primary screening in 2010, civil liberties groups decried the technology as unnecessarily intrusive and unconstitutional.

AIT scan

But a three-judge panel unanimously rejected such a claim Friday. In Electronic Privacy Information Center v. U.S. Department of Homeland Security, the District of Columbia Circuit found that the procedure properly balanced airport security with passenger privacy.

The opinion stemmed from a petition pursuant to 49 U.S.C. § 46110, which allows “a person disclosing a substantial interest” in a TSA rule to seek review in the D.C. Circuit. The petitioners, the Electronic Privacy Information Center, argued that the TSA violated the Administrative Procedure Act, numerous substantive statutes and the Fourth Amendment.

In general, the Fourth Amendment requires that law enforcement conduct searches only upon an individualized suspicion of wrongdoing. When the government undertakes searches for purposes other than apprehending criminals, however, the Supreme Court has held that law enforcement need not possess individualized suspicion. Courts uphold these “administrative searches” when a legitimate governmental interest outweighs the intrusion on privacy. With AIT scans, that “balance clearly favor[ed] the government,” the D.C. Circuit reasoned. It also rejected the EPIC’s statutory claims.

Nevertheless, the court granted the EPIC’s petition in part because the TSA failed to comport with the Administrative Procedure Act. The APA requires agencies to conduct a notice-and-comment period during which a proposed substantive rule is open to public comment. The TSA created the AIT scans without such a period. Thus, the court directed the TSA to conduct a notice-and-comment period, but allowed the agency to continue using scans because of the importance of uninterrupted airport security.

-Mike Walker

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