DHS Stonewalls On Public Comment About Body Scanners

OverTheGeicoE writes "On Saturday, the Electronic Privacy Information Center announced that they filed papers in the U.S. Court of Appeals for the DC Circuit to get the Department of Homeland Security to start its public comment process. In July the court ordered DHS to take public comment on airport body scanning, in accordance with federal law. The court allowed DHS and TSA to continue using scanners during the comment period. According to EPIC's filing the ruling against DHS became final on September 21 after EPIC's motion for a rehearing was denied. Since then, DHS has done nothing to comply with the order. EPIC wants DHS to release details for their public comment period process within 45 days. DHS is no stranger to the kind of notice and comment rulemaking that is being required of them. Earlier public comment on their Large Aircraft Security Program (LASP), which would have required draconian security on aircraft 10% of the size of a Boeing 737, did not go so well. They received 7400 comments 'vehemently opposed' to LASP in 2008 and 2009 and are still reworking the plan in response to the comments received."

Comments

Land of the free

[Anonymous Coward]

I know many countries which American's typically write of as commie bastards (ie: most of the world), where people simply wouldn't put up with your TSA nonsense.

Re:Land of the free

[Chrisq]

I know many countries which American's typically write of as commie bastards (ie: most of the world), where people simply wouldn't put up with your TSA nonsense.

I think the problem is that the TSA's survey shows that Americans won't put up with it either - unless its forced on them

Re:Land of the free

[ByOhTek]

The thing is, other countries wouldn't put up with the enhanced pat downs either.

Mostly because they'd simply accept the scanners, and the issue would never arise.

Re:Land of the free

[Anonymous Coward]

I have a co-worker who emigrated from Ukraine in the 90s, having grown up during the time when government bread lines were pretty common. The first thing he was required to do over here was to go to the DPS and get a license so he could drive to work. Being no stranger to dealing with government lines, he assumed he would be able to show up during an off-hour and get through. He was wrong, the line was out the door, and it was quite a shock to him. His comment to me was (insert heavy Ukranian accent here) "I thought things like this only occur in communist countires."

The problem is that every time I read the news about US security theater known as the TSA, all I can hear is his voice, complete with accent, telling me that these things should only occur in communist countries. It's depressing.

Re:Land of the free

[dougisfunny]

That or they wouldn't accept the scanners because they don't work....

Great

[adeft]

This is a great start. I'm not familiar with the process. If they document that everyone hates the scanners, will they actually be removed?

Re:Great

[AngryDeuce]

If they document that everyone hates the scanners, will they actually be removed?

With the insane amount of money the contractors (mostly ex-DHS and TSA officials that initiated these programs and then switched sides to cash in) are making building, installing, and training people on the use of these machines, I doubt it very highly.

It's the same problem as with the financial regulatory bodies in the United States. The Banks and the FEC regularly trade people back and forth; for all intents and purposes, they're on the same team. They go to $1000 a plate fundraisers together, they all owe each other favors. This would be the equivalent of police officers openly palling around with prostitutes and drug dealers, but the vast majority of Americans don't even know.

It's the same with the DoD and defense contractors, and the TSA and security contractors. They are all in collusion, they get their friends to make the laws or spearhead mandates necessitating new equipment, the friends bide their time for a year or so, and then resign, get a job with the "private" contractors, and make a fortune. I mean, how much money has Dick Cheney's friends made as a result of the War on Terror? How much has Dick made himself??

More people are starting to wake up to this nonsense, finally. What they do with this information remains to be seen...but short of open revolution and a fundamental threat to their existence, we're not going to see any changes from within. The only people that have the power to make these changes all directly benefit from the current way things are done. It's the same as expecting congress to vote to cut their own pay or benefits. WILL NOT HAPPEN.

Re:Great

[Anonymous Coward]

It works like this:

In the ordinary legislative process Congress passes a narrowly defined law and spells out how the executive branch ought to implement it. E.g. Congress writes a law which says that murder is a federal crime, and the FBI is imbued with the authority to investigate it.

In the modern legislative process, where the nuts and bolts of many issues are far more complex, Congress passes a broadly defined law that imbues the executive branch not only with the authority to enforce its provisions, but to interpret and set those provisions themselves. E.g. Congress passes a law that says the executive branch has the authority to regulate the release of toxic chemicals by factories through the EPA, then the EPA sets up the rules for maximum allowed quantities of sulfur released into the air, or levels or acceptable lead groundwater contamination, all without any additional input of Congress. These rules can be changed either by a direct act of Congress that more narrowly defines them, or an executive order from the President.

Usually, the federal agencies tasked with regulating in this manner devise a set of rules, regulations, and policies in accordance with the limits of the authority granted to them by law, and publishes those rules in something called the Federal Register for a set period before they take effect. Part of this process is to allow for and solicit Public Comments from relevant industry groups, public advocacy groups, citizens, public officials, and generally anyone else willing to take the time to write in, as well as to more fully evaluate and predict the impact of the new rules. The idea here is that if the agency ignores public comments and the results of cost-benefit analyses that oppose them, it becomes a political liability. E.g. If the pharmaceutical industry's overwhelming input on some new rules regarding the nuance of product recalls are ignored by FDA, you better believe that the industry will start spending its money lobbying Congress to codify their version of the rule in an amendment to the bills that govern the FDA, or the office of the President to replace the head of the agency or issue an executive order or memorandum to change the rule, or failing that, go straight to the public to get them to vote people into office who will be more amenable to their version of the rules.

In the present example, DHS is authorized by law to maintain airport safety through the TSA, and has adopted as one of its policies the use of body scanners to screen passengers, setting its own rules for things like acceptable maximum dose levels and guidelines for privacy maintenance. According to this article, they have not opened this policy up to public comment, despite being ordered to do so by the court (although the court did not issue an injunction against the policy, in deference to DHS' case that they will be vindicated as an important component of security).

In cases like these, it's tough to force a change in rules. There's no solidly opposed industry group waiting to throw their money into a campaign to change the rules, as the airline industry is either too cash-strapped or too scared to do anything about it. So groups advocating on behalf of the public are the only real opponents, a fact which has the DHS feeling pretty good about its chances of not having to change a thing.

Re:Great

[Bob the Super Hamste]

I believe there was a Supreme Court case in the 1800s where the court ruled on something and the president said something like:
"Now let them try to enforce it"
But basically all enforcement activities fall to the executive branch. Now if the executive branch won't enforce court ruling or laws then we the people have to vote them out of office or the legislative branch needs to start impeaching some people. Good luck trying to get the legislature to impeach the president over this, although there are a bunch with Rs after their names (possibly some Ds as well but they would be very few) who are looking for an excuse to impeach Obama. They even made a stink about this when Obama said he wouldn't be enforcing parts of DOMA.

Regulators vs. legislators

[LehiNephi]

Folks, this is exactly what you get when your elected representatives delegate regulation to appointed bureaucrats. I've said it before, and it bears repeating: if a regulation is important enough to enact, it's important enough to have the legislature go on record passing it, rather than letting political appointees create rules which have the force of law. Unelected = (largely) unaccountable.

Re:Regulators vs. legislators

[fahrbot-bot]

What I am wishing is that our system would let the governed people demand and receive accountability from their representatives.

As my dad used to say, "If wishes were horses..." Seriously, it's called the voting booth - and not being a moron. For the latter I refer to the likes of the Tea Party and the stories of them demanding that the Government "keep its hand off their Medicare", from the comfort of their Medicare paid for electric scooters... Or the Tea Party demanding a return to the Constitution, then wanting to amend it... For example, see:

• 5 Constitutional Amendments That Constitution-Loving Tea Partiers Would Change
  http://tpmdc.talkingpointsmemo.com/2010/10/top-5-constitutional-amendments-tea-partiers-would-repeal.php
• Tea Party-Backed Repeal Of The 17th Amendment Gets Republicans Into Trouble
  http://tpmdc.talkingpointsmemo.com/2010/05/tea-party-call-to-repeal-the-17th-amendment-causing-problems-for-gop-candidates.php

Or my mother who has become a rabid Republican now decrying the very social safety nets she supported when she was a younger and less affluent Democrat.

So sad.

Nope

[anom]

But just like with the White House "We the People" crap, they will be able to better-tailor the letter that tells you they're shoving it down your throat whether you want it or not.

Said a DHS Spokesperson:

[Greyfox]

"Someone with such a tiny penis really shouldn't be commenting on matters of public policy. Why don't you just return to your home, Citizen One-Half Kane."

"go away or I will issue a *second* ruling!"

[Anonymous Coward]

You are quite correct -- a quick read about Cherokee Nation vs. Georgia makes it quite clear that even when it is a Supreme Court ruling which is being ignored by a government body the worst that can happen is that the judge(s) will write a second, more sternly worded, ruling.

The Judicial Branch has no power of enforcement as that was deliberately reserved to the Executive. You would have to be quite naive to believe that the framers of the Consitution weren't aware that meant the Executive Brand could and would eventually ignore one or more rulings from the Judicial Branch ... even from the Supreme Court.

Re:Scanning not legal?

[Bob the Super Hamste]

Thankfully I don't think they let the TSA screeners have guns. They rank about as high as college campus security personnel in my mind but probably with worse training.

Re:to tell a judge he doesn't have the authority

[digitalsolo]

Have you been to an airport recently? I'm an American (and just a boring white guy) and they certainly seem to think I'm a terrorist by their treatment of me.

Don't Be Silly

[Bob9113]

You are all overreacting. The answer is quite obvious, and is held right in a bit of law often quoted around here:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

See, right at the end -- you have a right to petition the Government for a redress of grievances. It doesn't say they have to listen. They even capitalized "Government" but not "the people" -- it's like they knew how our lords in D.C. would view us today.

Go ahead, serf, petition away. It is your inalienable right. May I suggest shouting, while standing on your lawn in your underwear with a tin-foil hat on your head. That way all your neighbors will recognize you as the sort of looney who thinks the Easter Bunny is real, or that we have a representative government.