As a result of a lawsuit brought by EPIC, the D.C. Circuit Court of Appeals has ruled that the TSA violated federal law when it installed body scanners in airports for primary screening across the country without first soliciting public comment. The Administrative Procedure Act requires federal agencies to provide notice and opportunity for comment when implementing a rule that affects the rights of the public. Writing for a unanimous court, Judge Ginsburg found there was "no justification for having failed to conduct a notice-and-comment rulemaking," and said, "few if any regulatory procedures impose directly and significantly upon so many members of the public." EPIC's brief alleged that airport body scanners are "invasive, unlawful, and ineffective," and that the TSA's deployment of the devices for primary screening violated the U.S. Constitution and several federal statutes. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology. Press Release.
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Communications Law and Policy
Jerry Kang and Alan Butler