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

[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.

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

[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.

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.

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.