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An airline passenger goes through a full-body scan at O’Hare Airport on Nov. 23, 2010, in Chicago. (Scott Olson/Getty Images)

Opponents of the Transportation Security Administration’s use of body scanners at airport security checkpoints have filed their opening arguments in federal court this week.

Their documents make for interesting, if unpersuasive, reading at times — especially in the case brought by the Competitive Enterprise Institute (CEI) and the Rutherford Institute.

What to make of a lawsuit that asserts that this is a life-and-death issue because some travelers will choose to drive instead of fly rather than submit to a body scan? Or that restates, without irony, public comments from people who said they object about having to “assume the position”?

It’s also noteworthy that, despite these diabolical machines, the two individual petitioners named in CEI’s brief are still frequent fliers, according to documents filed in the U.S. Court of Appeals for the D.C.Circuit. That makes sense, sure — but wouldn’t it also have been useful to include at least one plaintiff who has sworn off air travel because he fears that pictures of his junk might end up circulating in TSA break rooms?


This is a sample illustration from a Department of Homeland Security privacy impact assessment of body scanners.

Over at the Electronic Privacy Information Center (EPIC), meanwhile, a narrower argument is made that the TSA has given its blessing to body scanners despite failing to prove that the devices are effective. EPIC’s lawsuit argues that the body scanners are not essential except as part of a pattern at the TSA of implementing measures before figuring out whether they actually work.

“They have yet to prove they’re more effective means and an essential element of airport security screening,” said Jeramie D. Scott,  who is the nonprofit organization’s national security counsel. He said metal detectors and explosive-trace detectors work just as well.

What’s more troubling is that the final rule promulgated this year by the TSA would also put an end to travelers’ ability to opt out of the body scan machines and undergo a pat-down instead, Scott said.

He said opponents are also skeptical of the TSA’s assurances that the images of people’s bodies cannot be stored or circulated anywhere.  But, in any case, the benefits don’t outweigh the risks, the group says.

“From our perspective, there’s no need to take those privacy risks when there are alternative methods that at minimal are just as effective, if not more effective,” Scott said Wednesday.

That’s a fair point. The lawsuits also seem like part of a long and worthy effort to get the TSA to follow proper regulations when implementing new security measures and square those with the public.

But it also seems like an odd battle to be fighting 15 years after the Sept. 11, 2001, attacks showed that airport security was an oxymoron and nearly a decade after the first body-scanning machines arrived at the nation’s airports. CEI’s brief says nearly 800 are in use at 157 airports nationwide. But the path to the courthouse has also been as tortuous as a TSA security line.

Since 2001, the TSA has moved to tighten airport security, including the introduction of advanced imaging technology at airports in 2007. In response to opposition, the TSA has removed some devices and modified others so that security personnel see stick figures instead of people’s body parts. But the agency only got around to issuing a final rule on the devices on March 3. The opponents have asked the court to review it.

CEI, a nonprofit organization that promotes limited government, is arguing that the TSA was capricious and arbitrary in writing its rule on body scanners, saying the agency failed to examine the argument that more people will die on the highway because they won’t go through the body scanners.

CEI says that more than 80 people — or about 1.5 percent of the 5,000 or so people who submitted comments to the TSA during the rule-making process — said they would drive rather than go through a body scan.

The organization — citing various sources, including TSA estimates after the Sept. 11 attacks — says that means that an additional 500 people could die on the road because of their dislike of the scanners. The group argues that the TSA should have given those factors more consideration before implementing a final rule on the use of the machines.

Marc Scribner, a Washington resident and a fellow in land-use and transportation studies at CEI, is one of CEI’s individual plaintiffs. In a blog posting on CEI’s website that accompanied its court filing, Scribner writes: “Indeed, based on an analysis of comments submitted in response to TSA’s 2013 proposed rule, we estimate the effect of modal substitution and find the number of additional highway fatalities to greatly exceed TSA’s own estimates of how many lives are saved by its deployment of AIT machines.”

It’s good that opponents are putting the government through its paces and calling out an agency that has provided ample evidence of its own incompetence to demonstrate the effectiveness of its measures before subjecting people to them. It makes no sense to implement technology if it’s not doing what it’s supposed to. But it also seems like a stretch for CEI to say that so many people will hit the road — and potentially die — that the risk outweighs the use of a technology that, if it does work, might stop an attack on a passenger aircraft.

Opponents of the machines say in court documents that about 94 percent of the commenters expressed opposition to the TSA’s use of the devices. Yet, a 2010 Washington Post-ABC News  poll found that nearly two-thirds of respondents were supportive of the devices, saying they didn’t mind sacrificing some personal privacy for security against possible terrorist attacks.

A spokeswoman for the TSA said the agency, as a matter of course, wouldn’t comment on litigation.

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