More than 18 months ago, a federal Court of Appeals ordered the TSA to provide formal notice and an opportunity for public comment on its “rules” for when travelers are required to submit to virtual strip-searches by machines that display images of our bodies as though naked.

Today, after seemingly endless foot-dragging that left it unclear if the TSA would ever comply with the court’s order (or would eventually be found in contempt of court for failing to do so), the TSA published its proposed rule in the Federal Register.

You have until June 24, 2013 to tell the TSA what you think of its proposal.

As Jim Harper of the Cato Institute points out, the proposed “rule” contains none of the (inadequate) limitations on the TSA’s virtual strip-search authority which were described in the TSA’s arguments to the Court of Appeals. (We’ll be talking with Jim and Ginger McCall of EPIC about this and related issues of “Travel Surveillance, Traveler Intrusion” at this lunchtime event at Cato in Washington next Tuesday, April 2nd.)

Rather than proposing a rule pursuant to which travelers would be entitled to opt out of the naked imaging (at the price of more intrusive groping of their genitals) , the TSA has proposed a rule in which, in addition to whatever else the TSA secretly defines as constituting “screening” in any particular case, all travelers are required, as a condition of travel by common carrier, to submit to virtual strip-searches whenever the TSA tells them to do so.

But that’s not the only glaring defect in the TSA’s Notice of Proposed Rulemaking.

First, 49 U.S. Code § 40101 and 49 USC § 40103 expressly recognize, and require the TSA (the references are to the FAA, but these responsibilities have been transferred to the TSA) to consider, in issuing regulations, “the public right of freedom of transit through the navigable airspace.”

Even if there were no such provision in the statute governing TSA rulemaking, the right to travel is guaranteed  both by the U.S. Constitution and by Article 12 of the International Covenant on Civil and Political Rights.

This right has not been considered by the TSA in this rulemaking. Nor, so far as we can tell, has it ever been considered in any TSA or DHS rulemaking. Instead, in direct contravention of this explicit statutory language, the TSA and DHS have repeatedly argued that their is no right to travel by any particular means of transport, and specifically that there is no right to travel by air.

Recognition that the proposed rule, like the TSA’s current practices, restricts or imposes conditions on the exercise of a right requires that the proposed rule be subject to “strict scrutiny”, which it has not been.  Strict scrutiny means that the proposed rule must be shown to be actually likely to be effective for a permissible purpose, and to be the least restrictive alternative available that would serve that permissible purpose.

Second, the Regulatory Flexibility Act analysis of the economic impact of the proposed rule on “small [economic] entities” is deficient and gravely flawed.  Accordingly to the TSA’s analysis, “The only additional direct cost small entities incur due to this rule is for utilities…”

However, individual would-be passengers are also, in many cases, “small entities” within the meaning of the Regulatory Flexibility Act. The statutory definition of “small entities” does not distinguish between individuals, natural persons, and corporations.

A large and growing number of individuals — in their capacity as sole proprietors, self-employed individuals, independent contractors, freelancers, etc. — are “small entities” as that term is used in the Regulatory Flexibility Act. Significant impacts an a “substantial” number of such individuals trigger the requirement for an RFA analysis, and any RFA analysis must include those impacts on such individuals.

It’s a chronic error of DHS in rulemakings to claim that “individuals are not small entities”, even though in at least one rulemaking the DHS has admitted (73 FR 18384 at 18403, April 3, 2008) in response to our comments (here at pp. 16-18 and here at pp. 13-14), that self-employed individuals are “small entities” within the definition in the RFA, and that impacts on them must be considered.

“Virtual strip-search machines” have serious impacts, including economic ones, on individuals.

In particular, some individuals — including an especially large percentage of survivors of sexual or other physical abuse — find both virtual strip-searches and  “enhanced pat-downs” (genital groping) intolerable.

For such individuals, the consequences of mandatory virtual strip-searches include lifetime denial of air travel, which can have profound lifetime career and income consequences. These economic impacts of the proposed rule on individuals must be acknowledged  and considered in the TSA’s assessment of the impact of the proposed rule.

Please join us next Tuesday, April 2nd, at noon at the Cato Institute in Washington for more discussion of this issue.