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TSA Argues It Has Not Been Delaying a Court-Ordered Public Comment Period on 'Nude-Body Scanners


"...there has been no unreasonable delay in complying with this Court’s mandate..."

Although the U.S. District Court of Appeals may have denied the Electronic Privacy Information's Center's case to outlaw the use of the Transportation Security Administration's Advanced Imaging Technology -- colloquially called the "nude-body scanners" -- in 2011, it did however rule TSA must make its rules and regulations for use of the scanners subject to public comment.

The controversial backscatter X-ray machines have been argued by some to violate personal privacy.

Wired writes the agency was in violation of federal law for not holding a 90-day public comment period in the first place and was ordered by the court to "act promptly" in hosting one. It still hasn't held this comment period, but in a response to the court published on Thursday, TSA states it will open the floor to public comments in Feb. 2013. It also defends itself saying there is "no basis whatsoever [... to assert] that TSA has delayed implementing the court's mandate." The court asked it to explain the delay earlier this month.

TSA notes it has "passed the first major milestone" in implementing this process -- submitting documents for approval to the Department of Homeland Security. It also cites "significant personnel loss." For these and a couple other reasons, TSA states:

Thus, there has been no unreasonable delay in complying with this Court’s mandate, much less the type of egregious delay that would warrant exercise of the Court’s mandamus powers. Further, while simultaneously expediting the initiation of a notice-and-comment period regarding its AIT program, TSA has taken substantial steps to address the privacy concerns discussed in the Court’s opinion.

The TSA also says the agency itself has waited for two and a half years for approval from DHS to host a comment period. It writes that in calling out the agency for a delay, the court reveals that it does not have accurate knowledge as to how long it takes to organize such an initiative.

"[The] petitioner’s repeated mandamus petitions reflect a fundamental misunderstanding of the nature of notice and-comment rulemaking and the time and resources required to develop a proposed rule. Petitioner has demonstrated no basis whatsoever for its demand for 'a writ of mandamus directing the Secretary to undertake a public rulemaking within 60 days,' or, alternatively, an order vacating 'the [AIT] program.'"

With all this, Wired explains the agency will hold public comments and hearings on the Advanced Imaging Technology 19 months after it was ordered to do so.

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