STATEMENT OF INTEREST: The National Association of Airline Passengers is a non-profit membership association organized in 2010 to protect the rights of airline passengers, promote safety and security at airports, and encourage mutual respect between passengers, crew, and airport personnel. It performs research and advocates legislative and regulatory action. No publicly held entity owns an interest of the National Association of Airline Passengers, and the Association does not have any members who have issued shares or debt securities to the public. This case is of great concern to the membership of the Association, and to everyone who flies as a passenger on any commercial airline in the United States. Passengers are required to comply with TSA’s security policies and submit to TSA’s security procedures. Many passengers find these policies unreasonable; the procedures abusive; and their implementation inconsistent and haphazard. TSA’s own tests have shown their equipment and practices to be ineffective and unreliable.Passengers have a broad range of knowledge, experience, and expertise that could enhance safety and security at all airports. However, passengers and the public have not been consulted in the normal manner specified in the administrative procedures act (APA). We believe TSA’s failure to solicit and heed advice and comment from passengers and the public weakens security and jeopardized the safety of all passengers, aircrew, and airport personnel.Douglas KiddExecutive DirectorNational Association of Airline PassengersRight2fly.org1-866-836-2500Executive SummaryTSA is proposing a new regulation to specify that screening and inspection of passengers and other individuals may include the use of advanced imaging technology (AIT), as follows:§ 1540.107 Submission to screening and inspection.(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.The National Association of Airline Passengers opposes the rule as written for the following reasons:• Technical inaccuracy.• The proposed rule does not reflect existing agency practice.• AIT units are less effective than walk through metal detectors in detecting common threat items.• AIT units are far more expensive to purchase, operate and maintain than walk through metal detectors.• The benefits from the use of AIT units are not commensurate to their cost.• Safety: AIT units represent a potential, if not actual, threat to the health and safety of passengers and TSA staff.• AIT units are not currently tested or inspected by independent state inspectors.• TSA does not require AIT units to be operated or maintained by licensed x-ray technicians.• The units violate the passengers’ reasonable expectation of privacy.• The units have been used for lewd and lascivious purposes by TSA staff.• TSA policies, practices, and procedures related to its deployment of AIT, and the use of “enhanced pat downs” for those who opt out or to resolve alarms, has cast the agency and its employees into disrepute, discouraged passengers from flying, and diminished tourism to the United States.• The proposed rule is not consistent with protecting passengers (49 U.S.C. § 44903 (b)(2) (A)) or the public interest in promoting air transportation and intrastate air transportation, (49 U.S.C. § 44903 (b)(2) (B)), and• The proposed rule is not consistent with the safety of passengers (49 U.S.C. § 44903 (b)(3) (A) or the courteous and efficient treatment of passengers by government (TSA) personnel. 49 U.S.C. § 44903 (b)(3) (B).Technical inaccuracy:For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.The proposed rule does not differentiate between units that actively scan individuals, such as backscatter and millimeter wave devices; and passive systems such as infrared. As such, we submit that it should more properly be described as Active Imaging Technology, to distinguish it from passive screening technologies.Recommendation: The proposed rule should be amended to read as follows:(d) The screening and inspection described in (a) may include the use of active imaging technology. For purposes of this section, active imaging technology is defined as screening technology that actively scans the passenger’s body using backscatter x-rays and/or millimeter wave radio frequency energy to detect concealed anomalies without requiring physical contact with the individual being screened.The proposed rule does not reflect existing agency practice:The proposed rule does not indicate TSA’s intent to use AIT as its primary passenger screening technology, or that passengers may opt out of such screening, or that the only screening alternative that will be offered to those who opt out will be a thorough pat-down. It does not indicate that children less than 12 years old are not required to be screened using AIT, or that passengers may have disabilities or medical conditions that make them ineligible for AIT screening.As TSA considers pat-downs a necessary and integral part of passenger screening using AIT, the proposed rule should disclose that passenger screening using AIT may include a pat-down to resolve alarms and as the only allowed alternative for those who chose to opt out. In addition, the term pat-down must be defined.Recommendation: The following language, or similar, should be added to the proposed rule:(d) The screening and inspection described in (a) may include the use of various screening methods, including walk through metal detectors, explosive trace detection, active imaging technology, and pat-downs. Passengers shall be advised that they have the right to opt-out of screening by active imaging technology, and the alternative screening methods available to them.For purposes of this section, active imaging technology is defined as screening technology that actively scans the passenger’s body using backscatter x-rays and/or millimeter wave radio frequency energy to detect concealed anomalies without requiring physical contact with the individual being screened.Pat-downs are the search and inspection procedure that requires physical contact with the body of the individual being screened.(e) Children 12 years old or younger shall not be separated from an accompanying adult during screening and are not required to be screened by active imaging technology. Unless otherwise directed by the accompanying adult, children 12 years old and under shall be directed to the Walk Through Metal Detector.(f) Passengers with disabilities and/or medical conditions that make them ineligible for active imaging technology shall be screened using alternative methods.AIT units are less effective than walk through metal detectors in detecting common threat items.Contrary to the assertions in the NPRM, it appears that both backscatter and millimeter wave AIT units are far less effective at detecting common threat items than ordinary metal detectors.House Committee Chairman John Mica:“The failure rate (for imaging equipment) is classified but it would absolutely knock your socks off,” Mica told reporters. The number of times TSA pat-downs failed to detect contraband is also secret but, according to the chairman, is “off the charts.” Huffington Post, 10/24/11U.S. Department of Justice:“Metal detectors work very well—they are considered a mature technology and can accurately detect the presence of most types of firearms and knives.” (The Appropriate and Effective Use of Security Technologies in U.S. Schools – A Guide for Schools and Law Enforcement Agencies, National Institute of Justice)TSA X-Ray Machines Easily Fooled, Researchers Find:“The X-ray body scanners increasingly in use at airport security checkpoints across the country cannot detect certain types of explosives and weapons, according to research by two respected academics. USA Today, 12/28/2010Armed Agent Slips Past DFW Body Scanner:An undercover TSA agent was able to get through security at Dallas/Fort Worth International Airport with a handgun during testing of the enhanced-imaging body scanners. The undercover agent carried a pistol in her undergarments when she put the body scanners to the test. The officer successfully made it through the airport’s body scanners every time she tried, the source said.“In this case, where they had a test, and it was just a dismal failure as I’m told,” said Larry Wansley, former head of security at American Airlines. “As I’ve heard (it), you got a problem, especially with a fire arm.” NBCDFW.COM, 2/21/2011Airport body scanners useless: German police(AFP) – Jul 30, 2011BERLIN — Body scanners being tested at Germany’s Hamburg airport have had a thumbs down from the police, who say they trigger an alarm unnecessarily in seven out of 10 cases, a newspaper said Saturday.The weekly Welt am Sonntag, quoting a police report, said 35 percent of the 730,000 passengers checked by the scanners set off the alarm more than once despite being innocent.The report said the machines were confused by several layers of clothing, boots, zip fasteners and even pleats, while in 10 percent of cases the passenger’s posture set them off.Italy to abandon airport body scanner project: reportBy AFP, Posted Thursday, September 23 2010 at 12:43After a six-month test, Italy’s government will drop the use of full-body scanners for security checks in airports, judging them slow and ineffective, Italian daily Corriere della Sera reported Thursday.“We didn’t get good results from body scanners during testing, it takes a long time to examine a person, more than with a manual inspection,” said Vito Riggio, the president of Italy’s aviation authority.Report: The Association of Independent Aviation Security ProfessionalsThe concerns are twofold. The first is that AIT is not capable of providing comprehensive identification of well-concealed explosives or weapons on a passenger. The second is that ATR when applied to the already poor spatial and/ or contrast resolution of AITs will further degrade its detection capability. Our position is as follows:1) Millimeter wave AIT is not an explosives detection system. It is a low resolution imaging system that has inherent limitations and gaps in coverage and detection. If used on its own as a primary means of detection, AIT could allow an IED, IED components or a weapon through a checkpoint.The Association of Independent Aviation Security Professionals, Promoting the Adoption of Meaningful Aviation Security Measures, Vulnerability of Automated Millimeter Wave Imaging Technology: An Unintended Consequence of “One Size Fits All” Checkpoint ScreeningConclusion:It is difficult to understand TSA’s decision to deploy AIT units. They have been shown to be less effective than metal detectors for detecting metallic threat items, and contrary to the claims of both their manufacturers and TSA, they do not detect explosives. Moreover, they have a high rate of false positives, reporting anomalies where none exist. While these units may be able to see small items not otherwise detectable, their inability to detect larger threat items that were previously easily detectable renders them unfit as a primary method of screening.We concur with The Association of Independent Aviation Security Professionals who stated the following in the report referenced above:“… using current generation AITs in place of walk through metal detectors (WTMDs) gives terrorists a short cut way to get commercial grade electronic or chemical detonators through a checkpoint without setting off any type of alarm. Given that Richard Reid’s and Umar Farouk Abdulmutallab’s bombs failed to explode only due to faulty homemade detonators (as well as the intervention of courageous crew and passengers), accepting such vulnerability carries a real and dangerous degree of risk.”Recommendation: The following language, or similar, should be added to the proposed rule:(d) The screening and inspection method described in (a) may include the use of various screening methods, including walk through metal detectors, explosive trace detection, active imaging technology, and pat-downs. Active imaging technology shall not be used as the primary screening method.AIT units are far more expensive to purchase, operate and maintain than walk through metal detectors.The table below summarizes some of the practical differences between the two technologies:Metal Detector Body ScannerBase Price*: $7,295 $119,025Shipping: Under $ 200. $3,105Shipping Weight:165 lbs.1097 lbs.Power Consumption: 100 Watts 1380 Watts*Base price before discounts. Metal Detector Archways vary in price from $ 1,208 to $ 7,762, depending on the manufacturer. Prices shown above are from the same manufacturer.TSA estimates it has or will incur the following additional costs as a result of its decision to deploy AIT/body scanners for the years 2008 through 2015.(in $ thousands – undiscounted)• Equipment $ 542,200.• Personnel and Training 1,807,602.• Utilities 3,654.• Other 20,054.Total $ 2,373,510.The benefits from the use of AIT units are not commensurate to their cost.Costs: As shown above, AIT units are up to 100+ times more expensive than walk through metal detectors (WTMDs).Benefits: TSA has represented that the proposed rule produces benefits by reducing security risks. The opposite appears to be true; that is, scanners simply do not work as well as less expensive walk through metal detectors.As shown by Jonathan Corbett, both backscatter and millimeter wave devices can be fooled quite easily by simply sewing a pocket on the side of a shirt with which to carry a metallic object. This method would not defeat an inexpensive metal detector.Independent researchers as well as TSA’s own inspectors have demonstrated that while AIT machines may be theoretically capable of detecting both metallic and non-metalic weapons and explosives, in practice they do not always do so. The statement of John Mica, Chairman of the House Transportation and Infrastructure Committee, bears repeating, as do the conclusions of the Association of Independent Aviation Security Professionals:“The failure rate (for imaging equipment) is classified but it would absolutely knock your socks off,” (John Mica)“… using current generation AITs in place of walk through metal detectors (WTMDs) gives terrorists a short cut way to get commercial grade electronic or chemical detonators through a checkpoint without setting off any type of alarm. Given that Richard Reid’s and Umar Farouk Abdulmutallab’s bombs failed to explode only due to faulty homemade detonators (as well as the intervention of courageous crew and passengers), accepting such vulnerability carries a real and dangerous degree of risk.” (The Association of Independent Aviation Security Professionals)TSA has not included any estimate of the monetized benefits from the use of AIT. Instead, it refers only to unquantified benefits as follows:The operations described in this proposed rule produce benefits by reducing security risks through the deployment of AIT technology that is capable of detecting both metallic and non-metallic weapons and explosives.… Since it began using AIT, TSA has been able to detect many kinds of non-metallic items, small items, and items concealed on parts of the body that would not have been detected using metal detectors. In addition, risk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT.It is difficult to see how TSA justifies this claim. There have been no successful terrorist attacks from U.S. airports since September 11, 2001, either before TSA began deploying its AIT devices, or afterwards. This suggests no measurable benefit due to risk reduction attributable to deployment of AIT scanners.The results of TSA’s risk-reduction analysis are classified. However, the Journal of Homeland Security and Emergency Management published a cost-benefit analysis in 2011. It stated the following:“It was found that, based on mean results, more than one attack every two years would need to originate from U.S. airports for AITs to pass a cost-benefit analysis. However, the attack probability needs to exceed 160-330 percent per year to be 90 percent certain that full body scanners are cost-effective.” (Cost-Benefit Analysis of Advanced Imaging Technology Full Body Scanners for Airline Passenger Security Screening)Conclusion:Independent tests and studies, as well as TSA’s own experience, have demonstrated that AIT units are less effective than metal detectors for metallic items and cannot be relied upon to consistently detect non-metallic threat items. Knowledgeable public officials have indicated that AIT scanners are of little, if any value, in reducing risk.We must conclude that AIT units have been deployed at substantial cost to the taxpayer with no corresponding benefit.“I don’t know why everybody is running to buy these expensive and useless machines. I can overcome the body scanners with enough explosives to bring down a Boeing 747. That’s why we haven’t put them in our airport.”Rafi Sela, former chief of security at the Israel Airport Authority.Recommendation: TSA may be able to realize substantial cost savings and decrease risk by discontinuing the acquisition and use of AIT units. We recommend a return to the walkthrough metal detector as the primary method of screening. Furthermore, we recommend TSA make every effort to develop less invasive screening technologies, such as infrared imaging.Safety: AIT units represent a potential, if not actual, threat to the health and safety of passengers and TSA staff.AIT units expose passengers and TSA staff to x-ray and millimeter wave radiation. X-rays have long been used in medical settings; their risk is known; their use is tightly regulated; there are existing standards for the safe operation of these devices, and operators are highly trained and licensed by the state.The decision to have an x-ray exam is a medical one, based on the likelihood of benefit from the exam and the risk from radiation.The decision to deploy AIT x-ray machines was not medical, based upon the likelihood of patient benefit weighed against the potential risk from radiation. Passengers were not examined by trained physicians to assess risk factors prior to determining being scanned; the machines were not inspected by independent state inspectors; and the operators were not licensed x-ray technologists. In addition, no record was maintained of who was scanned by each machine, in the event a malfunction was detected. Instead, these devices were deployed as a matter of convenience to the TSA, without regard to the potential risk to passengers.While TSA characterizes radiation from AIT scanners as “safe” because the doses were presumed to be “negligible” and below established limits, this is not in accord with research published by the National Research council of the National Academies. Their report states the following:“The committee concludes that the current scientific evidence is consistent with the hypothesis that there is a linear, no-threshold dose-response relationship between exposure to ionizing radiation and the development of cancer in humans.” (HEALTH RISKS FROM EXPOSURE TO LOW LEVELS OF IONIZING RADIATION Committee to Assess Health Risks from Exposure to Low Levels of Ionizing Radiation, Board on Radiation Effects Research, Division on Earth and Life Studies, NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, THE NATIONAL ACADEMIES PRESS)TSA represents that “AIT equipment has been subject to extensive testing that has confirmed that it is safe for individuals being screened, equipment operators, and bystanders.” Many dictionaries define safe as “free from harm and risk.” As used by TSA, safe does not mean free from harm and risk, but only that the risk is “negligible”.“They say the risk is minimal, but statistically someone is going to get skin cancer from these X-rays,” said Dr. Michael Love, who runs an X-ray lab at the department of biophysics and biophysical chemistry at Johns Hopkins University school of medicine.Dr. David Brenner, head of the center for radiological research at Columbia University in New York, told the London Telegraph in a June 29 story that considering the large number of people who frequent the nation’s airports, wide-ranging exposure, even to minimal amounts of radiation, could add up to one big concern.“…because the beam concentrates on the skin – one of the most radiation-sensitive organs of the human body – that dose may be up to 20 times higher than first estimated.”“If there are increases in cancers as a result of irradiation of children, they would most likely appear some decades in the future. It would be prudent not to scan the head and neck.”“There really is no other technology around where we’re planning to X-ray such an enormous number of individuals. It’s really unprecedented in the radiation world.”Scientists with the University of California at San Francisco were so worried that they wrote a letter to the White House Office of Science and Technology in April raising “a number of red flags” on the scanners’ safety.Less is known of the potential dangers of Millimeter Wave AIT. Again, the risk is said to be negligible, however TSA can point to no studies to support this contention. In effect, passengers are forced to be test subjects in what promises to be a long term experiment in millimeter wave safety. The potential for harm is real; the US military uses millimeter waves in its Active Denial System (ADS).What is known is that certain groups of people are at a much higher risk than others. These include babies, small children, pregnant women, the elderly, people with impaired immunity (those with HIV infection, cancer patients, people with immune deficiency diseases, and people with abnormal DNA repair mechanism, just to name a few).Indeed, TSA employees do not seem to know or care how dangerous millimeter wave AIT scanners can be. The danger was very real to sixteen-year-old Savannah Barry. Her $10,000 insulin pump was broken because she was coerced into going through a full-body scan at the airport. The agent said she would be all right. The agent was wrong.The scan destroyed the ability of the pump to function, and placed Savannah’s life in serious jeopardy.The agent clearly was not aware of or indifferent to the dangers AIT units posed to persons like Savannah; this implies a lack of awareness, if not indifference on the part of TSA management, who were responsible for the agent’s training.Katharine Gordon is a staff attorney for the American Diabetes Association. She said issues with TSA screening have been going on for years.Gordon said representatives from the American Diabetes Association meet in person with TSA once a year and also have a quarterly conference call about issues. But she said there is a breakdown between TSA training and what happens in the field.“These aren’t isolated incidences. They are occurring across the country…” said Gordon.http://www.thedenverchannel.com/news/teen-blames-tsa-for-broken-insulin-pump Lack of Independent Oversight:• AIT units are not currently tested or inspected by independent state inspectors.• TSA does not require AIT units to be operated or maintained by licensed x-ray technicians.Passengers are familiar with and understand the need for safety with medical x-rays, cat-scans, MRIs, and similar devices. These devices are FDA approved and registered with the state radiological authority. In addition to regular maintenance operators and manufacturers, state inspectors regularly conduct their own independent inspections to insure the continued safe operation of these devices.AIT scanners are not regulated by the FDA (since they do not serve a medical purpose). They are not tested or inspected on a regular basis by independent state inspectors, and their operators are not required to be licensed.Conclusion:TSA is gambling with the health as well as the safety of passengers, a situation made worse by TSA’s insistence on using AIT units as the primary method of screening. AIT units are not independently inspected by state inspectors, and their operators are not trained and licensed x-ray technicians. Indeed, there are published reports that TSA has allowed staff with no training to operate x-ray equipment.No matter how low TSA deems the risk, the decision to accept or avoid that risk must be the passenger’s alone. Rather than promoting the scanners as safe, TSA should have informed Passengers of the risks involved to their person from the use of this technology. This is especially true in the case of children and women who may be pregnant.The public wants and expect TSA to operate in a professional manner. They are shocked and appalled when they learn that TSA has does not even bother to comply with basic radiation safeguards – such as equipping its employees with dosimeters.Recklessness: Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt.We submit that in deploying AIT, TSA has been reckless: It has not desired to injure passengers, but it was or should have been aware of the potentially adverse consequences of its planned actions (the deployment of AIT) and went ahead anyway. TSA cannot plead ignorance of the risk; the very people whom it asked to evaluate these machines communicated their misgivings to TSA, as have others. TSA chose to disregard these warnings.Recommendation: The following sign should be displayed wherever AIT scanners are in use:Warning:Exposure to radiation is hazardous to your health.The ADVANCED IMAGING TECHNOLOGY (AIT) Scanners used at this screening facility employ radiation. They have not been inspected or tested by the State Department of Health for safety to passengers, pilots, or aircrew. They have not been approved by the Commissioner of Health for operation in this state.The operators of these machines are not licensed and have not passed the required national examination approved by the Commissioner of Health for limited x-ray machine operators.These scanners may be hazardous to your health. Use at your own risk.The units violate the passengers’ reasonable expectation of privacy.The units have been used for lewd and lascivious purposes by TSA staff.Passengers purchasing a ticket on an airline have contracted for air travel only – they have not volunteered to take part in a “peep show” for TSA employees. The images released by TSA to justify its use of scanners are remarkable in the clarity of the most intimate areas of individual’s bodies.Evidence of widespread abuse of these machines surfaced in February 2012, when Ellen Terrell reported that TSA “officers” had screened her three times because she had a “cute figure”.DALLAS (CBSDFW.COM) – Women passengers complain that TSA agents are targeting them for extra screening.The Transportation Security Administration has a policy to randomly select people for extra screening, but some female passengers are complaining. They believe there is nothing “random” about the way they were picked.A Dallas woman says TSA agents repeatedly asked her to step back into a body scanning machine at DFW International Airport. “I feel like I was totally exposed,” said Ellen Terrell, who is a wife and mother. “They wanted a nice good look.”When Ellen Terrell and her husband, Charlie, flew out of DFW Airport several months ago, Terrell says she was surprised by a question a female TSA agent asked her. “She says to me, ‘Do you play tennis?’ And I said, ‘Why?’ She said, ‘You just have such a cute figure.’”Terrell says she walked into the body scanner which creates an image that a TSA agent in another room reviews. Terrell says she tried to leave, but the female agent stopped her. “She says, ‘Wait, we didn’t get it,’” recalls Terrell, who claims the TSA agent sent her back a second time and even a third. But that wasn’t good enough.After the third time, Terrell says even the agent seemed frustrated with her co-workers in the other room. “She’s talking into her microphone and she says, ‘Guys, it is not blurry, I’m letting her go. Come on out.’”When TSA agents do a pat down on a traveler, only female agents are allowed to touch female passengers. But the TSA allows male agents to view the images of female passengers.Ellen and Charlie Terrell are convinced that the extra screenings were unnecessary, possibly even voyeuristic. “I think it’s sexual harassment if you’re run through there a third or fourth time,“ responded Texas State Representative Lon Burnam of Fort Worth. “And this is not the first time I have heard about it,” said Burnam, who adds that a number of his constituents have voiced concerns about privacy.CBS 11 News dug through more than 500 records of TSA complaints and found a pattern of women who believe that there was nothing random about the way they were selected for extra screening. TSA redacted the names of the passengers who complained, but here are quotations from several complaints.• “I feel I was targeted by the TSA employee to go through the see-you-naked machine because I am a semi-attractive female.”• “The screener appeared to enjoy the process of picking someone rather than doing true random screening. I felt this was inappropriate. A woman behind me was also “randomly selected.”• “TSA staff ‘trolling’ the lines looking for people to pull out was unprofessional.”• “After that, I saw him going to the private room where x-rays are, to speak to the guy on that room.”• “I know he went to that room to see my naked body through the machine with the other guy.”• “When I looked around, I saw that there were only women that were “told” to go through this machine. There were no men.”• “Maklng American citizens unwilling victims of a peep show by TSA employees using full body imaging devices is an over-the-top invasion of privacy to which I strenuously object.”Conclusion:TSA’s “privacy safeguards” described in the NPRM are mere public relations statements and do not reflect actual practice in the field. The abuse of AIT technology appears common and widespread; it also appears to promote further misconduct by TSA staff. Not content with simply viewing images, TSA employees have required passengers to remove outer clothing and undergarments, and in some cases gone even further.There are at least two reported cases where a woman’s blouse was pulled down causing her breasts to be exposed. TSA’s response was to “regret the passenger had an unpleasant experience.” There have been other cases where TSA employees have pulled down men’s pants in public. In one of these instances, the TSA “officers” covered their indiscretion by having the man arrested.Passengers have a reasonable expectation of privacy during the screening process. Common threat items, such as weapons, explosives and incendiaries can be easily detected without forcing passengers to disrobe or undergo a virtual strip search. Indeed, TSA already knows before a boarding pass is issued that the average passenger posses no threat to the aircraft, crew or other passengers – otherwise a boarding pass would not be issued.Recommendation: TSA can resolve all privacy issues related to AIT scanners simply by discontinuing the use of scanners as the primary mode of screening. They do not enhance security, they pose health risks, they encourage employee misconduct, and they are the cause of antagonism and resentment on the part of those who believe that they are being used for lewd purposes.The policies, practices, and procedures related to TSA’s deployment of AIT and the use of “enhanced pat downs” for those who opt out or to resolve alarms, has cast the agency and its employees into disrepute, discouraged passengers from flying, and diminished tourism to the United States.Employees cast into disrepute:TSA workers face verbal abuse from travelers, NBC News.com, Nov 23, 2010http://www.today.com/id/40318901/ns/travel-news/#.Ucewz_nbOH8 “Airline passengers aren’t the only ones complaining about the Transportation Security Administration’s new enhanced security procedures. Many TSA employees aren’t too happy, either.The American Federation of Government Employees (AFGE), the union that represents TSA workers, is urging the TSA to do more to protect its employees from abuse from airline passengers angry over the new security methods. The union reports that some members “have reported instances in which passengers have become angry, belligerent and even physical with TSOs (transportation security officers).“Molester, pervert, disgusting, an embarrassment, creep. These are all words I have heard today at work describing me. …These comments are painful and demoralizing,” one unnamed TSO posted on Frischling’s website.Another said: “Being a TSO means often being verbally abused. You let the comments roll off and check the next person; however, when a woman refuses the scanner then comes to me and tells me that she feels like I am molesting her; that is beyond verbal abuse.”“I have encountered a few TSA transportation security officers that have the ‘We’re keeping people safe’ attitude,” said Frischling, “But when you ask them about specific aspects of the TSA’s policy or procedure, they backpedal a bit and admit there are problems.”Travel and tourism discouraged:Flier Patience Wears Thin at Checkpoints, New York Times, Nov 8, 2010.http://www.nytimes.com/2010/11/09/business/09lines.html?pagewanted=all&_r=0 As the Transportation Security Administration scrambles to address vulnerabilities in procedures for screening cargo, it is facing growing criticism from travel industry groups over the escalating security measures for passengers.In recent weeks, representatives from the International Air Transport Association, the U.S. Travel Association, the Allied Pilots Association and British Airways have criticized the T.S.A., saying it adds intrusive and time-consuming layers of scrutiny at airport checkpoints, without effectively addressing legitimate security concerns.The U.S. Travel Association, in fact, is worried that the more onerous screening process will discourage air travel.“The system is broken, it’s extremely flawed and it’s absurd that we all sit back and say we can’t do anything about it,” said Geoff Freeman, executive vice president of the association. The group has convened a panel of transportation leaders to recommend a better way to balance security with a more efficient and honed screening process.Travel industry representatives say they are primarily concerned that security procedures unnecessarily burden the vast majority of travelers and crew members. The government, they argue, should instead be using intelligence to develop a risk-based approach to screening passengers.Specifically, they point to the new body scanners that are replacing metal detectors — which have raised privacy and health concerns, as well as prompted legal challenges — and the more invasive pat-downs, which have set off complaints about disrespectful treatment by agents.“I think people want to say enough is enough, but they’re worried that they’re going to be perceived as weak on security,” Mr. Freeman said.T.S.A. officials declined to discuss their checkpoint screening procedures, but sent an e-mail statement: “T.S.A. is a counterterrorism agency whose mission is to ensure the safety of the traveling public. To that end, T.S.A. deploys the latest technologies and implements comprehensive procedures that protect passengers while facilitating travel.”But the growing chorus of complaints from travel industry leaders suggests that frustrations with policies on shoes, laptops, liquids and pat-downs may have reached a limit.Giovanni Bisignani, chief executive of the International Air Transport Association, said in a speech at an aviation security conference in Frankfurt last week that the airlines would like to see an overhaul of the checkpoint screening process — with a greater focus on finding bad people, rather than bad objects.“Discouraging travelers with queues into the parking lot is not a solution,” Mr. Bisignani said in his speech. “And it is not acceptable to treat passengers as terrorists until they prove themselves innocent.”The proposed rule is not consistent with protecting passengers (49 U.S.C. § 44903 (b)(2) (A)) or the public interest in promoting air transportation and intrastate air transportation, (49 U.S.C. § 44903 (b)(2) (B)),Protecting passengers: “… using current generation AITs in place of walk through metal detectors (WTMDs) gives terrorists a short cut way to get commercial grade electronic or chemical detonators through a checkpoint without setting off any type of alarm. Given that Richard Reid’s and Umar Farouk Abdulmutallab’s bombs failed to explode only due to faulty homemade detonators (as well as the intervention of courageous crew and passengers), accepting such vulnerability carries a real and dangerous degree of risk.” The Association of Independent Aviation Security ProfessionalsPromoting Air Transportation:Bloomberg Businessweek, Airport Security Is Killing Us, By Charles KennyNovember 18, 2012“There is lethal collateral damage associated with all this spending on airline security—namely, the inconvenience of air travel (i.e., TSA) is pushing more people onto the roads. Compare the dangers of air travel to those of driving.“Researchers at Cornell University suggest that people switching from air to road transportation in the aftermath of the 9/11 attacks led to an increase of 242 driving fatalities per month—which means that a lot more people died on the roads as an indirect result of 9/11 than died from being on the planes that terrible day. They also suggest that enhanced domestic baggage screening alone reduced passenger volume by about 5 percent in the five years after 9/11, and the substitution of driving for flying by those seeking to avoid security hassles over that period resulted in more than 100 road fatalities.”The proposed rule is not consistent with the safety of passengers (49 U.S.C. § 44903 (b)(3) (A) or the courteous and efficient treatment of passengers by government (TSA) personnel. 49 U.S.C. § 44903 (b)(3) (B).Passengers concerned about the safety of AIT equipment face a variety of abuse if they opt out of the AIT scanner. This is no accident; it is a policy of the Agency:“I was told unofficially that there were two standards of pat-downs. One for the normal situation where passengers are going through metal detectors, and a different pat-down for those who refuse to go through the whole-body scanners.”The Consumer Traveler: TSA Admits to Punishing Travelers,by CHARLIE LEOCHA on AUGUST 24, 2010‘I asked him (the TSA agent) if he was looking forward to conducting the full-on pat-downs. “Nobody’s going to do it,” he said, “once they find out that we’re going to do.”In other words, people, when faced with a choice, will inevitably choose the Dick-Measuring Device over molestation? “That’s what we’re hoping for. We’re trying to get everyone into the machine.” He called over a colleague. “Tell him what you call the back-scatter,” he said. “The Dick-Measuring Device,” I said. “That’s the truth,” the other officer responded.The Atlantic.com: For the First Time, the TSA Meets Resistance, JEFFREY GOLDBERG, OCT 29 2010Other forms of harassment include Intimidation, Harassment, and Retaliatory wait time. Travelers who complain have been arrested and subjected to civil penalties.For those who have experienced TSA’s “enhanced pat-down” there is a common theme: “I felt like I was being raped.”“He started at one leg and then ran his hand up to my crotch. He cupped and patted my crotch with his palm. He also cupped and then squeezed my breasts. That wasn’t the worst part. He touched my face, he touched my hair, stroking me. That’s when I started crying. It was so intimate, so horrible. I feel like I was being raped. There’s no way I can fly again. I can’t do it.”The TSA has said that travelers will receive the pat downs by same sex TSA agents, but both Celeste and other flyers have refuted this.Rape Survivor Devastated by TSA Enhanced Pat DownPosted on November 8, 2010 by caraschulz49USC44901 authorizes TSA to “provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation.”No portion of the Aviation Security Act or US Code, or Regulations authorizes to TSA employees to sexually assault passengers. Indeed, US code expressly forbids such a practice:Color of Law Abuses (Excerpt From FBI web page)“… it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.”“Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.”What is Sexual Assault?Sexual assault is…• A broad term that encompasses any forcible sexual activity that occurs without the victim’s consent.• A range of behaviors that include, but are not limited to, unwanted kissing and fondling, forcible vaginal, oral, or anal intercourse, forcible vaginal, oral or anal penetration with an object or a finger.• A way for the perpetrator to exert power and control, not about “out of control” sexual desire.• Not gender specific. Sexual assaults can occur between a male and female, male and male, or female and female.• Against the law.• A violation of an individual’s body.• It affects everyone including the victim, their family and friends.Common Reactions to Sexual Assault are as follows:• Shock, disbelief, numbness• Intense emotions; anger, fear, anxiety, depression• Extreme worries about safety• Inability to remember details about the assault• Difficulties sleeping, nightmares; fear of the dark• Feelings of being “damaged” or violated• Memories of previous traumaIS THE ENHANCED PAT-DOWN SEXUAL ASSAULT?“To call it a pat-down is a euphemism,” said a spokesman for the ACLU in Massachusetts. Previously, TSA screeners were required to use the back of their hands when searching sensitive regions. The enhanced pat-down rules allow them to use their palms and fingers to feel, twist, squeeze, and prod passengers.Passengers who purchase air travel consent to a search of their person and property as a condition of travel. They do not consent to sexual assault, nor can any contract of carriage lawfully require them to do so.TSA employees cannot be compelled to violate state and local laws against sexual assault by knowingly and willfully touching passengers in the intimate areas of their body. They may lawfully refuse to obey any illegal order; indeed they have a duty to do so.TSA HANDBOOK TO MD 1100.73-3, PREVENTION AND ELIMINATION OF SEXUAL HARASSMENT IN THE WORKPLACE, describes sexual harassment as follows:If the conduct is unwelcome or unwanted, it may be sexual harassment even if the affected person submits or participates against his or her will.Examples of of Misconduct of a Sexual Nature:Unwelcome and deliberate touching such as patting, stroking, rubbing, biting, pinching, grabbing, bumping, back/neck rubs, and unsolicited clothing adjustments; orConduct to encourage, invite or suggest physical contact, such as blocking a passageway. (see below)The affected person, as well as the alleged harasser, may be the same gender or of a different gender as the alleged harasser.The affected person can be anyone who is subject to offensive conduct, including contractors, vendors, and TSA customers (i.e., passengers). Further, the affected individual need not be the person at whom the harassment was directed, but may be anyone who is affected by the offensive conduct.The alleged harasser may be a TSA employee, contractor, or customer.The intent of the alleged harasser is irrelevant; the reasonable effect of the conduct determines whether sexual harassment has occurred.Conclusion:It is the position of the National Association of Airline Passengers that the deliberate and willful touching of the intimate parts of a passenger’s body during TSA’s enhanced pat down is sexual assault under every circumstance and without exception. Employees are or should be aware when their actions may be contrary to state and/or Federal law; and that no Federal employee may be compelled to obey an unlawful order. As employees may lawfully refuse to obey unlawful orders, without fear of retaliation, it must be presumed that the deliberate and willful touching of any passengers in the intimate parts of their body is not the act of a reasonable person, and is being done out of a lewd and lascivious intent. This presumption must also apply to supervisory and managerial personnel who have ordered TSA employees to perform these lewd acts.TSA management knows, or should know, how states and colleges around the country define sexual assault (forcible sexual activity without the victim’s consent). Nevertheless it has implemented an “enhanced pat down procedure” that would be regarded as sexual assault in normal circumstances.The TSA knows, or should know, what the common reactions to sexual assault are, but unreasonably insists passengers not have these reactions, no matter how abusive their pat down may have been.Even though the TSA knows, or should know by now, just how traumatic its pat downs and body scanners are to passengers, it nevertheless has adopted a policy of threats and intimidation towards anyone who objects to pat downs.The TSA knows, or should know up to 1-in-4 women will experience rape or sexual assault in their life time, and that seventy percent of rape survivors physically resisted when the assault became violent.TSA knows, or should know that each of the States have laws protecting children from physical and sexual molestation by strangers, and these laws require parents to protect their children from harm.Recommendations:• TSA must end its policy of Irradiation or Molestation of passengers.• TSA must revise its existing pat-down procedures to be in accordance with state and local laws.• TSA must educate its employees in their duty to refuse to obey unlawful orders, especially those that would violate state sexual assault laws.• TSA must educate its employees in their duties and responsibilities towards minor children.• TSA must strengthen supervision of its employees to insure that passengers are not harassed, intimidated or retaliated against during the screening process.• TSA must return to the walkthrough metal detector as the primary screening method for passengers.• TSA must make restitution to those passengers abused by TSA, including and especially those who have been wrongly assessed civil penalties.• TSA must adopt, publish, and follow passenger bill of rights.• TSA must adopt, publish, and enforce, a code of ethics for its screening personnel.• TSA must adopt a policy of truthfulness and candor in its pronouncements.