Yesterday the House passed HR 2200, the Transportation Security Administration Reauthorization Act. Several floor amendments were offered with one particularly troubling amendment noticeable above all the others. Congressmen Jason Chaffetz (R-UT) and Congresswoman Carol Shea-Porter (D-NH) offered an amendment severely restricting the TSA’s use of ground-breaking techonology. The amendment targets Whole Body Imagers (WBI) and sets restrictions on their use. Substantively, the amendment codifies TSA’s current standard operating procedures for WBIs. But the precedent the amendment sets, namely codifying operational procedures for an agency that needs flexibility to be proactive, and the chilling effect on exploring new technologies could hamper the development and use of new technologies.

From the beginning of TSA, one of the most common and constant criticisms of the agency from Congress is that TSA is using 1950s-era technology to fight terrorism in the 21st century. Vocal TSA critics like Congressmen John Mica and Peter DeFazio have championed the development and use of technology to screen people and baggage recognizing that technology will enhance and economize the screening process. This amendment threatens to keep TSA in the 1950s.

WBIs, whether millimeter wave or x-ray, have proven to be one layer of the screening process that allows Transportation Screening Officers (TSOs) to see plastics and other non-metallic items carried by passengers. It may even help in detecting metallic implants and resolve the dilemma of screening disabled passengers. And it avoids the uncomfortable and invasive ‘pat-down’ or the removal of clothing. As the technology matures and is refined all of these benefits will be realized without inconvenience to the passengers while enhancing security.

Addressing privacy and modesty concerns the TSA put into place several safe-guards. It is only used for secondary screening, passengers choose between the WBI or a pat-down, facial images are blurred, TSA doesn’t store images, and the TSO viewing the image is “off-site” or out of view of the checkpoint. What the sponsors of the amendment may want to consider is that people voluntarily choose the WBI over a pat-down an overwhelming majority of the time — almost 100% of the time at several airports according to TSA. And passenger anecdotes and experiences, well publicized in the press, are favorable.

If the TSA is implementing these procedures and the public reaction is overwhelmingly favorable, it seems this amendment can only do more harm than good. Laws are difficult to change and amend once passed. This reduces TSA’s flexibility to move forward with improved technologies and screening procedures. More importantly it can hamper the agency when attempting to respond to newly discovered threats. For example, a threat similar to the 2006 “London bombing” plot may require the agency to use WBIs for primary screening to find liquid or plastic explosives.

Whatever the senario, the frieghtening fact of the matter is that 1.8 million passengers today will walk through metal detectors that will not alarm unless they are carrying metal. This happens despite that we know for a fact terrorists’ plots have included plastic and liquid bombs specifically designed to evade current technologies. Congress needs to enable TSA to move towards the future with detection technology, not back to the past.

Jeff Sural serves as counsel in the Legislative & Public Policy Group at Alston & Bird, LLP. He will focus his practice on homeland security and transportation matters on Capitol Hill and in federal government agencies. Read More
  • Ellen Howe

    Good post, Jeff. You are so right!!

  • Kip Hawley

    Cong. Dent and Cong. Lungren both made strong statements in opposition to the restrictive amendment and I admire them for standing up. Good points too Jeff, especially about restricting MMW in primary. Using MMW in secondary alone is a bad idea because the people who need MMW screening are not necessarily alarming in primary.