## Facts

- Federal law requires screening of all commercial airline passengers to prevent carriage of weapons, explosives, or other destructive substances.
- TSA implemented passenger-screening procedures largely through nonpublic Standard Operating Procedures and a general regulation conditioning entry into airport sterile areas on compliance with security measures.
- After a congressional directive to prioritize advanced detection technology, TSA deployed advanced imaging technology (AIT) scanners, including millimeter-wave and backscatter X-ray systems.
- TSA used AIT as a primary screening method at airport checkpoints, replacing magnetometers in many locations; the scanners produced an image approximating an unclothed body.
- EPIC filed a 2009 petition for rulemaking requesting public rulemaking on use of full-body scanners as primary screening; DHS responded by letter but did not formally grant or deny the petition.
- EPIC filed a second petition in 2010 seeking repeal of TSA’s primary-screening AIT policy; TSA refused to treat the submission as a petition under 5 U.S.C. § 553(e).
- EPIC and two airline passengers petitioned for direct appellate review, challenging TSA’s adoption of AIT without notice-and-comment, and asserting statutory and Fourth Amendment violations.

## Issues

1. Whether TSA’s decision to use AIT as primary screening was a legislative rule requiring notice-and-comment rulemaking under the Administrative Procedure Act.
2. Whether TSA’s use of AIT violated federal statutes governing aviation security and privacy.
3. Whether AIT screening as primary screening constituted an unreasonable search under the Fourth Amendment.
4. Whether DHS/TSA unlawfully failed to act on EPIC’s petitions for rulemaking under 5 U.S.C. § 553(e).

## Decision

- The court granted the petition in part and denied it in part.
- TSA’s adoption of AIT as primary screening was a legislative rule that substantially affected the public and therefore required notice-and-comment rulemaking.
- The court ordered TSA to undertake notice-and-comment rulemaking promptly regarding the AIT primary-screening policy.
- The court rejected claims that AIT violated the cited federal statutes, concluding the governing aviation-security statutes afforded TSA broad discretion over screening methods.
- The court held AIT screening was a Fourth Amendment search but reasonable as an administrative search in the airport-security context, given the government’s interest and the program’s privacy safeguards as represented in the record.

## Legal Principles

- An agency action that substantially affects the public and alters the practical rights and obligations of regulated parties is a legislative rule requiring APA notice-and-comment procedures.
- A general regulatory mandate to comply with security measures does not excuse failure to use notice-and-comment when the agency makes a substantial, public-facing change in screening intrusiveness.
- Airport checkpoint screening is analyzed as an administrative search; it is constitutional if reasonable in light of the government’s aviation-security interest and the search’s scope and safeguards.
- Statutes requiring passenger screening and encouraging deployment of advanced detection technologies may confer broad discretion on TSA regarding screening methods, subject to compliance with procedural requirements such as the APA.

## Conclusion

The D.C. Circuit required TSA to subject its primary-screening deployment of AIT body scanners to notice-and-comment rulemaking, while upholding the use of AIT against statutory challenges and finding the searches reasonable under the Fourth Amendment as implemented with privacy protections.


Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011)