TSA Seeks Comments on Whole Body Imaging at Airports

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TSA will install new privacy technology on screening machines in coming weeks.

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Every day, thousands of airline passengers pass through whole body imaging scanners. Although the Transportation Security Administration (TSA) started using these scanners—known as Advanced Imaging Technology (AIT) machines—six years ago, the agency never followed the required rulemaking procedures. Now, the TSA is fixing this procedural failure by seeking public comments on a proposed rule that would codify its authority to use whole body imaging at airport security checkpoints.

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According to the TSA, the best way to detect concealed items without touching passengers is by using AIT machines. AIT machines already have uncovered hundreds of prohibited items concealed on passengers. Unlike metal detectors, AIT machines can detect both metallic and nonmetallic weapons and explosive devices. In its proposed rulemaking, the TSA emphasized that effective technology is an “essential component of TSA’s arsenal of tools to detect and deter threats against our nation’s transportation systems.”
The TSA began testing AIT equipment at a single airport in early 2007. In the initial phase of its study, the TSA used AIT machines only on airline passengers who set off a metal detector. Two years later, the TSA expanded its testing to other airports by using AIT as a primary screening device. Based on the testing’s success, in early 2010, the TSA decided to use AIT scanners for primary screening at all airport security checkpoints.
TSA is issuing its recent proposed rule to comply with a 2011 decision of the D.C. Circuit Court of Appeals in Electronic Privacy Information Center v. U.S. Department of Homeland Security. Although the D.C. Circuit rejected the Electronic Privacy Information Center’s (EPIC) constitutional challenge to the TSA’s use of AIT machines, the court agreed that the TSA should have used notice-and-comment rulemaking before implementing the AIT screening program.
The D.C. Circuit Court ordered the TSA to issue a notice of proposed rulemaking about the use of AIT scanners for primary security screening at airports. Although the court acknowledged that Congress directed the TSA to “give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons,” the Court concluded that the TSA did not justify its failure to use notice-and-comment rulemaking. However, the Court recognized “the obvious need for the TSA to continue its airport security operations without interruption,” so the Court did not require the TSA to stop using AIT in the interim as it promulgates a rule.
In its notice of proposed rulemaking, the TSA gave a detailed explanation of the privacy safeguards for AIT and requested public comments on these privacy safeguards. By June 2013, all AIT machines will use Automatic Target Recognition (ATR), which protects the traveler’s privacy by detecting concealed items and displaying them on a generic outline of a body instead of using images of individual passengers. Even before it used ATR technology, the TSA protected privacy by requiring all AIT machines to blur the passenger’s face, and by ensuring that no TSA personnel saw both the person being scanned and the image of that individual.
The TSA has used two types of AIT machines. One type projects high-speed, low-level x-ray beams over the body surface (“backscatter technology”); the other bounces electromagnetic waves off the body (“millimeter-length radio waves”). Traditional x-ray machines, by comparison, transmit x-rays through an object.
According to the TSA, both types of AIT machines are safe. The x-ray and radio waves emitted from AITs are well below federal and international safety limits, the agency says. The TSA noted that a traveler would have to go through a backscatter AIT machine 2,000 times before being exposed to the levels of x-rays emitted during a single chest x-ray. Although the backscatter AIT machines meet safety requirements, the TSA will remove them by May 31st of this year because backscatter technology is incompatible with ATR.
The TSA also requested comments about passengers’ ability to opt out of AIT screening. Signs posted at airports notify passengers that they may choose to have a thorough pat down instead of going through AIT scanners. According to the TSA, since 2009, fewer than 2% of passengers have selected the pat-down option.
The TSA is accepting public comments on its proposed rulemaking until June 24, 2013.