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DHS Stonewalls On Public Comment About Body Scanners 192

Posted by timothy
from the we'll-feel-for-the-answers-instead dept.
OverTheGeicoE writes "On Saturday, the Electronic Privacy Information Center announced that they filed papers in the U.S. Court of Appeals for the DC Circuit to get the Department of Homeland Security to start its public comment process. In July the court ordered DHS to take public comment on airport body scanning, in accordance with federal law. The court allowed DHS and TSA to continue using scanners during the comment period. According to EPIC's filing the ruling against DHS became final on September 21 after EPIC's motion for a rehearing was denied. Since then, DHS has done nothing to comply with the order. EPIC wants DHS to release details for their public comment period process within 45 days. DHS is no stranger to the kind of notice and comment rulemaking that is being required of them. Earlier public comment on their Large Aircraft Security Program (LASP), which would have required draconian security on aircraft 10% of the size of a Boeing 737, did not go so well. They received 7400 comments 'vehemently opposed' to LASP in 2008 and 2009 and are still reworking the plan in response to the comments received."
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DHS Stonewalls On Public Comment About Body Scanners

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  • Land of the free (Score:5, Insightful)

    by Anonymous Coward on Tuesday November 01, 2011 @10:49AM (#37907730)

    I know many countries which American's typically write of as commie bastards (ie: most of the world), where people simply wouldn't put up with your TSA nonsense.

    • by Chrisq (894406) on Tuesday November 01, 2011 @11:04AM (#37907976)

      I know many countries which American's typically write of as commie bastards (ie: most of the world), where people simply wouldn't put up with your TSA nonsense.

      I think the problem is that the TSA's survey shows that Americans won't put up with it either - unless its forced on them

      • by ByOhTek (1181381)

        The thing is, other countries wouldn't put up with the enhanced pat downs either.

        Mostly because they'd simply accept the scanners, and the issue would never arise.

        • That or they wouldn't accept the scanners because they don't work....

    • Re: (Score:3, Interesting)

      by Anonymous Coward
      I have a co-worker who emigrated from Ukraine in the 90s, having grown up during the time when government bread lines were pretty common. The first thing he was required to do over here was to go to the DPS and get a license so he could drive to work. Being no stranger to dealing with government lines, he assumed he would be able to show up during an off-hour and get through. He was wrong, the line was out the door, and it was quite a shock to him. His comment to me was (insert heavy Ukranian accent her
      • His complaint was about the size of a line, and you are extrapolating to mean that our government is as onerous as that of a communist country's? Am I reading your post correctly?

    • The TSA and the whole DHS is going to get a well-deserved housecleaning around starting about Feb 2013.

      On the other hand, a lot of these wonderful countries have decided to roll over for terrorism and for the destruction of their own cultures in the name of political correctness and multiculturalism. They don't call it Londinistan for nothing. Sort of like John Kerrys's theory that we should only attempt to limit terrorist attacks on Americans to "acceptable levels". That, and not his

      • by ByOhTek (1181381)

        Who do you expect to do that housecleaining?

        If the republicans win, we'll have the people who installed these groups in the first place.
        If the democrats win, well, we can see how much (zero, for those living under a rock) they've done to alleviate the issue so far.

        I can only assume you are moving to another planet by that point. So, I have to ask, since there are no others in this system, where is your space ship, and how do I get a ticket?

        • You are correct that we are stuck with this forever, because the Republicans will pillory on the nightly news anyone foolish enough to suggest that we *shouldn't* live in a "show us your papers" society, and would also do their patented "hold my breath until I turn blue" act should a bill actually be introduced.
        • by dgatwood (11270)

          Who do you expect to do that housecleaining?

          Given the rising level of discontent? My guess would be whichever leaders are still alive after American Spring.

          For about the last decade, I've been saying that I expect to see an armed overthrow of the U.S. government in my lifetime. It's not a pleasant thought, but it is nearly inevitable; the aristocracy has simply become too powerful relative to the plebes. If history has taught us anything, it is that you can't allow that sort of a wealth and power gap to

      • by bberens (965711)
        No one, I repeat no one is going to make cuts at the DHS. Even if they only cut obviously wasteful projects/programs no one is willing to be the guy who cuts DHS before we get attacked.. and we'll get attacked, it's just plain statistics.
      • I assume that you believe that Ron Paul will some how become president, or that the libertarians will some how manage to takeover both the house and senate the greens would probably do the same thing but I don't follow their party platform closely. While personally leaning to the libertarian side of issues like this I still don't see any of the mainstream candidates planning to do anything about this. It gives them too much power.
    • I'm no fan of the TSA; my opinion is that their usefulness has passed, and they know it. But as to what OTHER sovereign states do to their citizens, it's a rear day when I find myself thinking, "we should do that here in the U.S."

      As for using the term

      commie bastards

      , the current term is "Pithedic Commie Bastards.", or one can use the acronym PCB. Update databases, if required.

      • by cayenne8 (626475)

        I'm no fan of the TSA; my opinion is that their usefulness has passed, and they know it. But as to what OTHER sovereign states do to their citizens, it's a rare day when I find myself thinking, "we should do that here in the U.S."

        As for using the term

        commie bastards

        , the current term is "Pathetic Commie Bastards.", or one can use the acronym PCB. Update databases, if required.

        there...FTFY....

  • Great (Score:4, Interesting)

    by adeft (1805910) on Tuesday November 01, 2011 @10:55AM (#37907828)
    This is a great start. I'm not familiar with the process. If they document that everyone hates the scanners, will they actually be removed?
    • This is totally epic, in any case. I do know that if they continue to fail to comply, some judge will eventually start hanging people.
      • by ByOhTek (1181381)

        Welcome to America. You must be new here.

        • I've been watching the legal system for quite some time and I've noticed that when a judge tells you to do something and you don't listen, eventually they want to know why you aren't doing what they told you to do. It's also not helpful to tell a judge he doesn't have the authority to hear your case, or really any other range of stupidity that tends to piss people off in general.
          • Sudo We're Fighting Terrorists. This Is Not The Case You Are Looking For. Move Along Your Docket Now.

          • by residieu (577863)
            That's true when "you" is a common citizen. Why "you" is an arm of the Federal Government, or the Executive Branch in particular, there's not a whole lot the courts will do if they are ignored.
          • I believe there was a Supreme Court case in the 1800s where the court ruled on something and the president said something like:
            "Now let them try to enforce it"
            But basically all enforcement activities fall to the executive branch. Now if the executive branch won't enforce court ruling or laws then we the people have to vote them out of office or the legislative branch needs to start impeaching some people. Good luck trying to get the legislature to impeach the president over this, although there are a bunc
            • I believe there was a Supreme Court case in the 1800s where the court ruled on something and the president said something like: "Now let them try to enforce it"

              That would be Andrew Jackson, defying the Supreme Court, leading to the infamous "Trail of Tears" [wikipedia.org]

      • by hedwards (940851)

        Hanging no, but it wouldn't surprise me if the judge started holding officials in the DHS in contempt of court. What's great about that is that there isn't any appeal process for that, so they'd have to straighten up and fly right, or spend time in jail until such time as the judge either lost interest or they decided to comply with the order. I suppose they could get fined, which is more likely, but judges only have finite patience for this sort of disrespect.

        • I think the Judge would have to reach down deep and grow a pair for that. But I'd watch the court room interaction on Pay-Per-View anytime DHS is on the carpet for their nonsense.
    • Nope (Score:5, Insightful)

      by anom (809433) on Tuesday November 01, 2011 @10:59AM (#37907892)

      But just like with the White House "We the People" crap, they will be able to better-tailor the letter that tells you they're shoving it down your throat whether you want it or not.

    • If they document that everyone hates the scanners, will they actually be removed?

      With the insane amount of money the contractors (mostly ex-DHS and TSA officials that initiated these programs and then switched sides to cash in) are making building, installing, and training people on the use of these machines, I doubt it very highly.

      It's the same problem as with the financial regulatory bodies in the United States. The Banks and the FEC regularly trade people back and forth; for all intents and purposes, they're on the same team. They go to $1000 a plate fundraisers together, they all

    • Re:Great (Score:4, Informative)

      by Anonymous Coward on Tuesday November 01, 2011 @11:35AM (#37908334)

      It works like this:

      In the ordinary legislative process Congress passes a narrowly defined law and spells out how the executive branch ought to implement it. E.g. Congress writes a law which says that murder is a federal crime, and the FBI is imbued with the authority to investigate it.

      In the modern legislative process, where the nuts and bolts of many issues are far more complex, Congress passes a broadly defined law that imbues the executive branch not only with the authority to enforce its provisions, but to interpret and set those provisions themselves. E.g. Congress passes a law that says the executive branch has the authority to regulate the release of toxic chemicals by factories through the EPA, then the EPA sets up the rules for maximum allowed quantities of sulfur released into the air, or levels or acceptable lead groundwater contamination, all without any additional input of Congress. These rules can be changed either by a direct act of Congress that more narrowly defines them, or an executive order from the President.

      Usually, the federal agencies tasked with regulating in this manner devise a set of rules, regulations, and policies in accordance with the limits of the authority granted to them by law, and publishes those rules in something called the Federal Register for a set period before they take effect. Part of this process is to allow for and solicit Public Comments from relevant industry groups, public advocacy groups, citizens, public officials, and generally anyone else willing to take the time to write in, as well as to more fully evaluate and predict the impact of the new rules. The idea here is that if the agency ignores public comments and the results of cost-benefit analyses that oppose them, it becomes a political liability. E.g. If the pharmaceutical industry's overwhelming input on some new rules regarding the nuance of product recalls are ignored by FDA, you better believe that the industry will start spending its money lobbying Congress to codify their version of the rule in an amendment to the bills that govern the FDA, or the office of the President to replace the head of the agency or issue an executive order or memorandum to change the rule, or failing that, go straight to the public to get them to vote people into office who will be more amenable to their version of the rules.

      In the present example, DHS is authorized by law to maintain airport safety through the TSA, and has adopted as one of its policies the use of body scanners to screen passengers, setting its own rules for things like acceptable maximum dose levels and guidelines for privacy maintenance. According to this article, they have not opened this policy up to public comment, despite being ordered to do so by the court (although the court did not issue an injunction against the policy, in deference to DHS' case that they will be vindicated as an important component of security).

      In cases like these, it's tough to force a change in rules. There's no solidly opposed industry group waiting to throw their money into a campaign to change the rules, as the airline industry is either too cash-strapped or too scared to do anything about it. So groups advocating on behalf of the public are the only real opponents, a fact which has the DHS feeling pretty good about its chances of not having to change a thing.

    • Unfortunately the process is probably more important than the results in this case. Eventually they will have the public comment period where everyone will tell them a billion and a half reason why this sucks and then they will go and do the sham review and say that the problems are unfounded and just implement the system. I really need to write my congress critters about the DHS/TSA again but they never seem to respond or if they do it is with a form letter stating that they support the security and safety
  • by LehiNephi (695428) on Tuesday November 01, 2011 @10:57AM (#37907872) Journal
    Folks, this is exactly what you get when your elected representatives delegate regulation to appointed bureaucrats. I've said it before, and it bears repeating: if a regulation is important enough to enact, it's important enough to have the legislature go on record passing it, rather than letting political appointees create rules which have the force of law. Unelected = (largely) unaccountable.
    • I have not seen you post that before, but I agree whole-heartedly. I believe that a large part of what is wrong with modern politics is that Congress delegates too much of its authority to unelected bureaucrats.
      • I was just thinking about this, and the other thing that's lacking in transparency is granularity of the vote. I think a big step toward reform would be to require bills to address small, identifiable subjects, like a single tax incentive program, or even a single element of a single tax incentive program. Then, when you're doing your TurboTax on April 14th, you can right click on the line item for the snow-pea farmer special incentive 75% deduction for the first $200,000 of income, and see how your repre

        • There are some basic rules that I think people need to keep in mind for making a democratic government work. The first is that all issues should be decided at the most local level of government that can conceivably address the issue (for example, all education issues should be resolved at the local school board level). The second is the First Rule of Voting, "When in doubt, vote the Ins out." That means that voters should vote against the incumbent unless there is some very specific reason to return them to
        • But then how could some representatives bribe others by adding subsidies for spinach in a war funding bill [usatoday.com]. I really wish that stuff like this was a joke but it isn't.
          • The first problem is that the system requires the Legislators to pass the laws that would regulate themselves... the Founding Fathers were pretty good, but I think this is a big flaw in the system.

        • by DarkOx (621550)

          I agree and have posted before as well. Omnibus bills are essentially undemocratic. It lets a few privileged legislators who by no virtue other than having been there long enough to get committee appointments, silently slip cronyism into legislation the public won't notice until its much to late.

          Legislation should be atomic, and stated as succinctly as possible. We should amend the Constitution to require that all items touched upon in a legislative act be clearly and directly related in a way understand

          • I wouldn't say that it needs to be atomic but the crap they put in bills should at least be germane to the main topic. I would settle for germane even though I would still like single item bills. Here in Minnesota we have a law that requires amendments be germane to the main issue of the bill and courts have struck down laws because of it. The most recent example of which was the current MN carry law. The problem is that it still requires a judge and there are probably things that they they wouldn't strike
        • see how your representative and senators voted on that particular item, the item you cared about, and get some sense of whether or not you want to vote for them again.

          You're assuming our representatives want to be accountable... All they care about is getting (re)elected and/or ensuring the other party isn't.

          • see how your representative and senators voted on that particular item, the item you cared about, and get some sense of whether or not you want to vote for them again.

            You're assuming our representatives want to be accountable... All they care about is getting (re)elected and/or ensuring the other party isn't.

            No, sadly, I know better. What I am wishing is that our system would let the governed people demand and receive accountability from their representatives. Wish in one hand...

            • What I am wishing is that our system would let the governed people demand and receive accountability from their representatives.

              As my dad used to say, "If wishes were horses..." Seriously, it's called the voting booth - and not being a moron. For the latter I refer to the likes of the Tea Party and the stories of them demanding that the Government "keep its hand off their Medicare", from the comfort of their Medicare paid for electric scooters... Or the Tea Party demanding a return to the Constitution,

    • by cvtan (752695)
      The problem is: Elected= Idiotic OR (largely) accountable to someone (but not us).
    • by dkleinsc (563838)

      There are several arguments in favor of the unelected bureaucrats making those sorts of decisions:
      - Congress only has so much time available, so that means that fewer decisions can get made. If, for example, you had to get a bill passed every time you wanted to figure out whether a new mining technique was a good idea, it would make the technological development of the field much slower, and fetter the market even more than unelected bureaucrats do.

      - Congressmen aren't experts in a particular field. Using o

      • by h4rr4r (612664)

        They would have more time available if they tried going to work. What other job pays for the full year but only makes you come in 1/3 of the normal work days?

      • by DarkOx (621550)

        If, for example, you had to get a bill passed every time you wanted to figure out whether a new mining technique was a good idea, it would make the technological development of the field much slower, and fetter the market even more than unelected bureaucrats do.

        That's the trouble with what has happened to this nation right there. Trying a new mining technique should not require an act of government!

        If you own the land, and can find people to work the mine that should be that. If you harm someone else property near by well they file a civil suit against you. If it turns out to be a big issue that come up repeatedly then and only then should congress take an interest in it.

      • Congress only has so much time available, so that means that fewer decisions can get made.

        Okay, you convinced me it was a good idea right there.

        If, for example, you had to get a bill passed every time you wanted to figure out whether a new mining technique was a good idea,

        Why should the default assumption about any new idea be "it's a bad idea"?

    • by hedwards (940851)

      I take it your a libertarian, because the effect of doing that would be to almost completely shut down the government. I'd rather have career civil servants making most of those decisions as they're typically there through multiple administrations and are more likely to have some idea as to how to write the regulations. Plus, since they aren't directly beholden to one party or another, it's somewhat less likely for corruption.

      That being said, it's not perfect, and I know there are times when public interest

  • by Greyfox (87712) on Tuesday November 01, 2011 @11:02AM (#37907960) Homepage Journal
    "Someone with such a tiny penis really shouldn't be commenting on matters of public policy. Why don't you just return to your home, Citizen One-Half Kane."
  • The US executive branch has been in blatant violation of the highest law of the land for over a decade now, why would they stop now?

    • Decade? Try at least a Century.

    • by hedwards (940851)

      There's momentum now. Had this been dealt with in the wake of 9/11, I doubt very much that the train would still be rolling. Unfortunately, the failure to charge any of the Bush Administration officials with crimes against humanity, even the ones that admitted on tape to ordering war crimes, isn't likely to make it any easier for future Presidents to go back to respecting the constitution.

    • by Mashiki (184564)

      Decade huh? Yeah don't let reality stop you or anything. Since Bush actually went through congress and the senate. But just remember that Obama is actually turning around and fully side-stepping both the house and senate to pass laws he wants passed. We call that a banana republic.

  • They were allowed to continue using the scanners during the comment period. But they refuse to actually start the comment period, so it sounds like they have to comply with the court and stop using the scanners. Not that the Executive Branch cares much what the Judicial Branch has to say on anything.
  • The TSA will not be allowed to piss off the corporate elite. If this passes, it will be quickly reversed and whoever came up with it will be fired so hard their old pay slips will burst into flames.

    • by i.r.id10t (595143)

      The corporate elite simply hop in their private jet and go wherever w/ o scans, pat downs, etc. They even have in flight food and drink service, enough legroom, and probably get to band the stewardesses ...

      • The corporate elite simply hop in their private jet and go wherever w/ o scans, pat downs, etc.

        Which illustrates my theory that the goal is to protect planes, not people. Downing a private plane is just as damaging to life and property, though more easily "explained" as some sort of "error"... Remember, the rich are not cattle.

        • by CompMD (522020)

          Read TFA. The TSA wanted to put goons on private aircraft and make GA pilots submit data for background checks on their passengers. I'm a private pilot, and like many of my peers, have a seething hatred of the TSA. They seriously dreamed of being able to check over who was going to be in the other seat in a two seat airplane. They have backed off the GA community because of stuff mentioned in TFA.

  • by Bob9113 (14996) on Tuesday November 01, 2011 @01:04PM (#37909328) Homepage

    You are all overreacting. The answer is quite obvious, and is held right in a bit of law often quoted around here:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    See, right at the end -- you have a right to petition the Government for a redress of grievances. It doesn't say they have to listen. They even capitalized "Government" but not "the people" -- it's like they knew how our lords in D.C. would view us today.

    Go ahead, serf, petition away. It is your inalienable right. May I suggest shouting, while standing on your lawn in your underwear with a tin-foil hat on your head. That way all your neighbors will recognize you as the sort of looney who thinks the Easter Bunny is real, or that we have a representative government.

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