Christopher Elliott, The Travel Troubleshooter, April 23, 2013
It's been almost five years since the Transportation Security Administration quietly began installing its so-called Advanced Imaging Technology (AIT) - better known as full-body scanners - at airports nationwide. And now the government wants to know what you think of the machines.
In 2011, the U.S. Court of Appeals for the District of Columbia Circuit ordered the TSA to engage in what's known as notice-and-comment rulemaking on its use of the technology. Until June 24, you can share your opinion on the Notice of Proposed Rulemaking at the Federal Register website, https://www.federalregister.gov/articles/2013/03/26/2013-07023/passenger-screening-using-advanced-imaging-technology.
In other words, air travelers can finally give the government a piece of their mind about the controversial scanners and the way they're used at airports. Depending on how the public responds, the TSA could either double down on its multibillion-dollar scanner program, or it could decommission the machines and impose alternate standards, including using metal detectors and explosive-trace detection screening.
The TSA hopes that passengers will approve of its current screening practices. "AIT is the best technology available to detect both metallic and nonmetallic objects hidden on a passenger, and is an important part of TSA's multi-layered security efforts," says agency spokesman David Castelveter.
Still, the agency assigned to protect America's transportation systems promises to listen and respond to the public comments. "TSA will review and analyze the public comments to develop a final rule related to the screening process using AIT," says Castelveter.
But critics question both the agency's claims and its sincerity.
"This technology raises significant privacy problems," says Khaliah Barnes, an attorney for the Electronic Privacy Information Center (EPIC). "When TSA deployed the body scanners, it initiated one of the most sweeping, most invasive and most unaccountable suspicion-less searches of American travelers in history."
EPIC has repeatedly challenged the use of body scanners in court, arguing that the technology is ineffective and violates a passenger's individual privacy rights. The court-ordered public comment period is a direct result of EPIC's suit against the Department of Homeland Security.
Other activists have raised concerns about the health effects of the machines, claiming that AIT technology hasn't been adequately tested. TSA insists that the scanners are safe for all passengers and meet national health and safety standards.
But mostly, a coalition of privacy advocates is opposed to the way the scanners are used at the airport, with passengers forced to choose between walking through the machine or facing what's called an "enhanced" pat-down. Many travelers complain that these manual exams by TSA agents are abusive and punitive. The TSA says that the "vast" majority of passengers do not receive pat-downs and that those who do have "important" rights that are respected by its screeners.
The rulemaking asks the public to comment on four possible changes in the way passengers are screened. First, TSA could turn the clock back to before 2008 and use metal detectors as the primary passenger screening technology. Any alarms would be resolved with a pat-down. This is an option already being offered without incident to a sizable group of passengers, including those who qualify for TSA's expedited Pre-Check screening, airline crew members and military personnel on duty.
A second option would see the TSA return to using metal detectors as the primary screening method but supplement its screening by conducting a pat-down on a randomly selected portion of passengers.
Another possibility: going back to metal detectors as a primary screening technology and conducting explosive trace detection tests on random passengers. This is the option favored by most passenger-rights advocates, since it ends both the invasive scans and eliminates the problematic pat-downs.
The final option is to leave the current system in place: using full-body scanners as a primary screening method and resolving alarms through a pat-down. This method is favored by the TSA, which says that it's the most effective way to screen passengers and prevent another terrorist attack.
"The public has a unique opportunity to affect the TSA's future actions," says EPIC's Barnes. "It is absolutely imperative that they comment on the TSA's proposal."
Some passengers believe that the current system works. The TSA says that roughly 99 percent of air travelers choose the full-body scanners instead of "opting out" and receiving a pat-down, and it cites a CBS poll that shows four out of five Americans support the use of Advanced Imaging Technology at airports nationwide.
"I choose body scans whenever available," says Michael Menaker, a retired advertising executive from Louisville, Colo. "It's much quicker and easier than the pat-down I always get. I have an artificial hip, and the scanners speed me through security with less hassle."
Larry Edward, one of several hundred commentors on the rulemaking site, disagreed. "No more scanners," he said in a brief statement. "I will do anything to avoid flying because of them and the invasive pat-downs that are occurring at the airports."
A recent review of the comments suggested an overwhelming number in favor of abandoning AIT technology and stopping the TSA's policy of giving a prison-style pat-down to passengers who set off an alarm or who voluntarily opt out.
The TSA is trying to keep these comments to a minimum, say observers. They point to the TSA's own blog post on the subject, published almost two weeks after the release of the rulemaking but deleted within minutes of being posted. After receiving questions from many travelers, as well as this reporter, about the missing post, the TSA republished the notice a week later - minus the links to the site where readers could leave a comment.
One reason the agency seems uncomfortable with a rulemaking is that it's the first time the TSA has ever defined or offered an opportunity for passengers to comment on any aspect of the screening process, according to privacy activist Edward Hasbrouck.
"In this light, it's likely that one reason the TSA has been so resistant to a public rulemaking process on AIT is the likelihood that it would open the door to renewed demands from consumer, privacy and civil liberties groups for a similar rulemaking on other aspects of the screening process," he says.
The agency's coyness, combined with what critics say is a lack of transparency, has left many doubting that the TSA will do anything meaningful in response to the public comments.
For some air travelers, no matter what happens, it will be too little, too late. They say that the agency has spent the better part of the past five years subjecting them to unconstitutional searches, violating their civil rights and assaulting their dignity when they fly.
Nancy Nally, a website publisher from Palm Coast, Fla., says that regardless of how the TSA responds, she's most disappointed by its lateness. This rulemaking should have happened in 2006, not 2013, she says.
"Why close the barn door after the horse is gone?" she asks.
(Christopher Elliott is the author of "Scammed: How to Save Your Money and Find Better Service in a World of Schemes, Swindles, and Shady Deals" (Wiley). He's also the ombudsman for National Geographic Traveler magazine and the co-founder of the Consumer Travel Alliance, a nonprofit organization that advocates for travelers. Read more tips on his blog, elliott.org or e-mail him at [email protected]. Christopher Elliott receives a great deal of reader mail, and though he answers them as quickly as possible, your story may not be published for several months because of a backlog of cases.)