The court said that, whether an administrative search is unreasonable, is a balancing test on how much it intrudes upon an individual’s privacy, and how much that intrusion is needed for the promotion of “legitimate” government interests.
“That balance clearly favors the government here,” the court ruled 3-0. The court added that an “AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard explosives in liquid powder form.” The three-judge appellate panel did not address limited research suggesting that the machines might not detect explosives or even guns taped to a person’s body.However, the appellate court, which is one stop from the Supreme Court, said that the Transportation Security Administration breached federal law in 2009 when it formally adopted the airport scanners as the “primary” method of screening. The judges said the TSA violated the Administrative Procedures Act for failing to have a 90-day public comment period, and ordered the agency to undertake one.
Judge Douglas Ginsburg, writing for the majority, said the TSA must allow for the 90-day notice-and-comment period because of the new “substantive obligations” on airline passengers. “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. Therefore, regardless whether this is a ‘new substantive burden,’ the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking, Ginsburg wrote.
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Marc Rotenberg, the president of EPIC, the group that brought the challenge, said the decision means the “TSA is now subject to the same rules as other government agencies that help ensure transparency and accountability.” He said “Many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law.”
Clearly its a good thing that the public will finally have at least a semblance of a "say" in all this - something denied from the outset. I find it interesting however that the court did not take into account the fact that these scanners DON'T WORK! I also would like the court to address the actual likelihood that someone will be killed while flying in a plane (a fraction of the chance you'll be hit by lightning) - or better, whether these scanners would have made any difference if one is killed?
Fear is not a principle to build a healthy society around, particularly when those very fears are being magnified by those that have ulterior motives (including financial) for doing so.