EFF has joined a diverse collection groups signing on to a brief prepared by the Competitive Enterprise Institute to support the Electronic Privacy Information Center (EPIC) in its call for the Transportation Security Administration (TSA) to conduct a legally required notice-and-comment rulemaking for its "advanced imaging" scanners. The TSA is currently operating 700 such scanners in nearly 190 U.S. airports. A year ago, in July 2011, the TSA was ordered to "promptly" commence the notice-and-comment rulemaking process but has failed to follow the law and do so for an entire year, claiming that it lacks the necessary resources.

Today's brief explains the trouble with that logic (emphasis added):

If the TSA is unable to manage its tremendous budget of nearly $8 billion in a manner that enables the agency to follow well-established laws, this Court is obligated to exercise its authority to compel the agency to follow duly enacted laws.


Curiously, the obstacles responsible for the TSA’s delayed rule-making here do not appear to have forestalled the agency’s aggressive deployment of AIT scanners in airports nationwide. [...] This course of conduct is hardly indicative of an agency so starved for resources that it cannot comply with a straightforward judicial mandate within one year. Moreover, the TSA’s purchase of hundreds of new scanners after this Court’s July 2011 decision in EPIC suggests the agency intends to continue doing as it pleases without regard to public input or duly enacted laws.

EFF supports EPIC in calling for a court order directing TSA to begin the rulemaking within 60 days. There is no reason agencies like the TSA should be exempt from judicial review. It is unacceptable for the agency to simply ignore the ruling.

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