This is the Cato Daily Podcast for Wednesday, July 11, 2012.

I'm Caleb Brown.

The TSA was ordered a year ago to be more transparent and responsive

in how it chooses the method of scanning Americans' bodies

and airports. A year later, the TSA has not followed that court order.

Jim Harper, Director of Information Policy Studies, at the Cato Institute, comments.

On July 15, 2011, the D.C. Circuit Court of Appeals ruled that the TSA Transportation Security Administration was supposed

to do a notice and comment rulemaking on its policy of using advanced imaging technology,

AIT, also known as body scanning and strip search machines,

as primary screening at airports.

The idea behind notice of comment rulemaking, that's traditional administrative procedures.

You post the policy in the Federal Register, you take comments for a period of time, and then

finalize the policy, responding to those comments. And and importantly it's subject to a legal standard called the arbitrary and capricious standard.

That's interesting and new for the TSA because up until now it hasn't been subject to any

legal standard at all in terms of its policies. A year later, mid-month July,

TSA's compliance, public compliance with this ruling is nothing at all. It hasn't done even the notice of the policy, much less

taking comments and respond to the comments with a new final rule. So it's a good time to be talking about

this policy. It's one that continues to concern people, it's one that continues to

offend people, and it's one that is like so many TSA procedures is constantly shifting.

We don't exactly know what the rules are.

So let's have the TSA do that notice and comment rulemaking.

And if it's not going to do it it let's make some noise about it.

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