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Administrative Law Keyed to Schwartz
Electronic Privacy Information Center v. United States Department of Homeland Security
Citation:
653 F.3d 1 (2011)Facts
The TSA began deploying AIT scanners in 2007 for secondary screening of selected passengers. In 2009, the TSA initiated field testing of AIT as primary screening at limited airports, and in 2010 decided to use AIT scanners for primary screening at all airports. By the end of 2010, the TSA operated 486 scanners at 78 airports with plans to add 500 more. The scanners produce images of unclothed passengers, which are viewed by an officer in a remote location. The TSA implemented privacy protections, including distorting facial features, deleting images after passenger clearance, and offering passengers the option to choose a pat-down instead. EPIC and other organizations objected to this implementation, arguing that the TSA should have engaged in notice-and-comment rulemaking before deploying AIT as a primary screening method. They also raised concerns about privacy, health, and constitutional issues. The TSA maintained that it was not required to engage in rulemaking for changes to screening procedures.
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