A story on last week by Eric Boehm caught my eye because the headline, “Lawsuit Challenges TSA To Prove Body Scanners Aren’t Killing People,” implied that body scanning technology used by the Transportation Security Administration (TSA) to detect explosives and contraband might actually be killing people. In reality, the sensationalistic headline was nothing more than a teaser to the question on whether TSA should prove that more people would die in an automobile accident than had they flown on an airplane.

The lawsuit was filed by two Competitive Enterprise Institute (CEI) “research fellows” who believe that TSA did not do a proper job in performing an economic analysis in support of its decision to impose whole-body scanning on airline passengers. CEI has shown that it is no fan of TSA’s body scanning rule, having won a lawsuit against TSA in 2015. But this lawsuit seemed to be different – a bit too far-fetched for even my imagination.

My immediate reaction was that for an organization that has decried the excessive costs of “frivolous lawsuits” or “excessive regulation” for more than two decades, a lawsuit like this one might seem a wee-bit hypocritical. OK, a whole lot hypocritical.

My second reaction was that these “research fellows” ought to know that coincidence is not the same as causation. People who choose to avoid flying so they can avoid having their body and luggage scanned for contraband cannot, and in my opinion should not, be able to sue TSA when they are involved in an automobile accident, even one where there are fatalities, no matter how foreseeable it might have been. There is just no reasonable linkage between the two events.

But the second time I read through the story, I realized that what the lawsuit was really about was their belief that TSA did not engage in a proper “trade off” analysis. TSA simply avoided doing the hard mathematical calculations on whether and how many people would die if they chose to drive rather than fly. Here is how the story put it:

“If this all sounds a little bit theoretical, that’s because it is. The lawsuit isn’t claiming that anyone in particular has been harmed by the TSA’s scanners—though Scribner claims he has standing for the legal challenge because he, like many Americans, regularly travels on airplanes and by car—but merely that the TSA didn’t do the proper amount of math before rolling the hulking machines into airports and making passengers queue up for them.”

And so there you have it. A lawsuit has been filed in federal court because TSA didn’t do its math (homework.) TSA will have to defend this lawsuit at some substantial cost to the taxpayers who pay for the government defense lawyers.

Frankly, I would love to see the math on the cost of the defense. Perhaps plaintiffs should have to estimate the cost to federal taxpayers of defending lawsuits against federal agencies. In the interest of transparency, requiring plaintiffs to tell the defendants how much defending a lawsuit might be could lead to quicker settlements, quicker court decisions and an overall preservation of federal resources. Of course, if one follows this line of thinking to its logical conclusion, plaintiffs should also disclose – at the time of filing their lawsuit – an estimate of the total cost to the federal judicial system from their filing. How much of a judge’s salary will be consumed by this lawsuit? How about the cost of law clerks, bailiffs and court security, computer systems and the cost of the use of courthouse itself?

If you think I’m crazy in suggesting this, I would merely point you to any of the thousands of federal procurement RFPs where the federal government asks potential private sector contractors for this type of detailed information regularly. In fact, the failure to provide detailed data of this nature can get a bidder disqualified. Maybe the same requirements should apply to public interest groups, like CEI, the ACLU and others. Just maybe they should have to do the “math” that they claim the federal agencies don’t do.

If that were to actually happen, I don’t think we would see as many lawsuits as the one CEI’s research fellows have filed against the TSA. A reasonable person might voluntarily choose to find another way to make their point – a press conference, an op-ed, a book or magazine article, or maybe even a social media campaign on Twitter.

Who knows the potential benefits that might come from fewer lawsuits? We might not need as many DHS lawyers, judges, courthouses, and with the “savings,” we might be able to bring down the federal deficit. Even if it is a tiny amount, every little bit helps, as they say.

I’m the first to admit that we do not have enough information to provide answers to these questions. We need more research on this important topic, don’t we? Maybe the two “research fellows” at CEI might be willing to undertake this project. By my reckoning, it would be at least as productive as filing a lawsuit, and perhaps more so. What say ye, fellows? Are you up to the task?

David Olive focuses his blogging primarily on the “business of homeland security” — the interaction of the private sector with the Department of Homeland Security and other national security agencies. Read More
  • dogmatix

    I think you have the idea of “cost” to the taxpayers backwards. The government employs thousands of lawyers to defend its actions, good or bad, and not to protect the interests of the people whom they serve. They are not about to reduce their staff or budget even if no taxpayer ever brought a case.

    You want disclosure on the cost of defending these lawsuits? Zero! The government employees who defend these suits suffer no out of pocket costs at all. They can take all the time they want. What does “cost” mean to a government that regards even 1 billion dollars as hardly worth mention?

    The taxpayer, on the other hand, faces almost insurmountable obstacles when bringing suit against the government with its thousands of attorneys and unlimited resources. The filing fee alone is $ 500.00, and then you have to get a lawyer. Figure 1000 hours of your lawyer’s time at $ 500.00/hour (minimum) and you are up to an easy half million – something a billion dollar corporation might be able to afford, but well beyond the means of most individuals.

    The government isn’t always right, either. This is one of those cases. It spent a lot of money on costly, flawed body scanners that nobody likes, (even congress and the senate now realize they don’t work as well as walk through metal detectors) and then wanted to force everyone to use them. TSA took a see no evil, hear no evil, speak no evil when it came to the public’s complaints, forcing CEI and others to bring suit. CEI’s suit isn’t costing the public a dime, either, but TSA’s actions have cost the public plenty, and that’s not counting the countless number of passengers who have been harmed, directly and indirectly, by these machines.

    This lawsuit is not about making a point. It’s about TSA ignoring their responsibilities, making excuses, and ignoring the legitimate concerns of the traveling public, and their duties under the Administrative Procedures Act, as well as their oaths of office.

    I’d like to know how the author can be so complacent when it comes to the lack of security at airports, beginning with the TSA. Who watches the watchmen? They are the weakest link in airport security.