July 15 (Bloomberg) -- Airport body scanners that create unclothed images of passengers were improperly adopted by the U.S. as a primary screening tool, a federal appeals court ruled, while allowing their use to continue.
The U.S. Transportation Security Administration should have sought public comment before deciding that the scanners, first deployed in 2007, would be used “everywhere for primary screening,” U.S. Circuit Judge Douglas Ginsburg in Washington wrote for a three-judge panel in the decision issued today.
The devices were developed at the direction of Congress, which in 2004 ordered the TSA to give “high priority” to finding new technology for airport screening that could detect chemical, biological and radiological weapons. Privacy advocates objected to the scanners as excessively intrusive and said the TSA failed to follow correct procedure in implementing their widespread use.
“Due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it,” Ginsburg wrote. The court said that passengers who don’t want a body scan will receive a “patdown” from security agents.
Greg Soule, a TSA spokesman, said the agency is reviewing the opinion.
“This is the best technology currently available to detect non-metallic improvised explosive devices hidden on a passenger, and is an important part of TSA’s multi-layered security efforts,” Soule said in an e-mailed statement. He said the TSA is trying out new software that generates a “generic outline” of a person rather than a passenger-specific image.
The TSA employs two types of body scanners. One uses “millimeter wave” technology that relies on radio frequency energy. The other has “backscatter technology” that uses low-intensity X-ray beams. Each produces an image without clothing of the person being scanned. The scan allows TSA agents to detect nonmetallic objects such as liquids or powders, which a magnetometer can’t detect, without touching the passengers.
The agency awarded leasing contracts for scanners to Rapiscan Systems Inc. and a unit of L-3 Communications Holdings Inc. in late 2007. New York-based L-3 contracts military and homeland security technology to the U.S. government. Rapiscan, based in Torrance, California, makes security-detection technology for airports.
L-3 fell 86 cents to $81.51 at 2:57 p.m. in New York Stock Exchange composite trading. The shares gained 17 percent this year before today. Jennifer Barton, a spokeswoman for L-3, said the company doesn’t typically comment on legal matters.
Rapiscan “is not involved in the legal proceedings and will continue to support its ongoing programs with the U.S. Transportation Security Administration,” Peter Kant, the company’s executive vice president, said in a statement. “The ruling does not affect Rapiscan’s business in any material way.”
Rapiscan is a unit of OSI Systems Inc., a global supplier of security inspection products based in Hawthorne, California. OSI fell 7 cents to $42.79 on the Nasdaq Stock Market.
The TSA tested the scanners as a primary screening tool in 2009 and decided last year to use them everywhere for ordinary screening. By the end of 2010, the agency was operating 486 scanners in 78 airports with plans to add 500 more by the end of this year, according to the court.
The Electronic Privacy Information Center and two of its advisory board members sued the TSA in July 2010, claiming the scanners violated federal privacy laws and constitutional protections from unreasonable searches.
They also challenged the decision to use the scanners as a primary screening tool without first allowing people to comment. The U.S. government is required to notify the public when it proposes a new rule and to seek comments from interested parties before issuing a final regulation. It must also allow people to petition for a rule to be amended or repealed.
The TSA argued that the screening decision wasn’t a “legislative rule” and was therefore exempt from federal notice-and-comment requirements.
Rejecting the privacy and constitutional arguments, the appeals panel said the change to so-called advanced imaging technology, or AIT, affected the public sufficiently to trigger rulemaking requirements.
“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,” Ginsburg wrote. Without providing a timetable, he said the court expected the TSA to “act promptly” in soliciting public comment.
“Many Americans object to the airport body scanner program,” Marc Rotenberg, president of the Electronic Privacy Information Center, said in an e-mailed statement. “Now they will have an opportunity to express their views to the TSA, and the agency must take their views into account.”
The case is Electronic Privacy Information Center v. U.S. Department of Homeland Security, 10-1157, U.S. Court of Appeals for the District of Columbia (Washington).