EPIC v. DHS: Suspension of Body Scanner Program

By Electronic Privacy Information Center

Body Scanner Incident Reports

Quotes

Introduction

EPIC has filed a lawsuit to suspend the deployment of body scanners at US airports, pending an independent review. On July 2, 2010, EPIC filed a petition for review and motion for an emergency stay, urging the District of Columbia Court of Appeals to suspend the Transportation Security Administration’s (TSA) full body scanner program. EPIC said that the program is “unlawful, invasive, and ineffective.” EPIC argued that the federal agency has violated the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, and the Fourth Amendment. EPIC cited the invasive nature of the devices, the TSA’s disregard of public opinion, and the impact on religious freedom.

Top News

  • EPIC Demands Documents from DHS about Mobile Body Scanners, Use of Devices at Trains Stations and Stadiums: EPIC has filed a Freedom of Information Act request to the Department of Homeland Security, demanding that the agency turn over documents concerning the use of body scanner technology by law enforcement agencies in surface transit and street-roaming vans. EPIC cited previous DHS testing of body scanners on New Jersey’s PATH trains and the development of street-roaming backscatter vans. EPIC has also filed a lawsuit to suspend body scanner program. EPIC has called the devices “invasive, inefffective, and unlawful.” For more information, see: EPIC: Whole Body Imaging and EPIC: EPIC v. DHS. (Nov. 24, 2010)
  • Majority of Americans Now Oppose Body Scanners and TSA Pat Downs: A new poll by Zogby International finds that 61% of Americans polled between Nov. 19 and Nov. 22 oppose the use of full body scans and TSA pat downs.  Of those polled, 52% believe the enhanced security measures will not prevent terrorist activity, almost half (48%) say it is a violation of privacy rights, 33% say they should not have to go through enhanced security methods to get on an airplane, and 32% believe the full body scans and TSA pat downs to be sexual harassment. The Zogby Poll is the most recent survey of American opinion on the new airport screening procedures. Combined with earlier polls by USA Today and the Washington Post-ABC News, the Zogby Poll reflects declining support for the TSA program. (Nov. 23, 2010)
  • EPIC Releases Analysis on TSA Body Scanner Program – “Deployment and contracting for body scanners should be suspended”: EPIC is making available to the public today the report EPIC prepared in January 2010, following the release of documents from the DHS in an open government lawsuit. The analysis, based on the internal records obtained from the agency, reveals that the “device specifications, set out by the TSA, include the ability to store, record, and transfer images, contrary to the representations made by the TSA…include hard disk storage, USB integration, and Ethernet connectivity that raise significant privacy and security concerns…include “super user” (“Level Z”) status that allows the TSA itself to disable filters and to export raw images…” The EPIC memo states “Based on the materials received to date, EPIC concludes that further deployment and contracting for body scanners should be suspended until the privacy and security problems identified are adequately resolved.” The documents were obtained in EPIC v. DHS (FOIA) EPIC has since filed papers in federal court to suspend the program. See EPIC v. DHS (body scanners). (Nov. 22, 2010)
  • Congress Raises New Questions About Airport Screening Procedures: Rep. Bennie G. Thompson (D-MS) and Rep. Sheila Jackson-Lee (D-TX), two leading members of Congress, have sent a letter to TSA Administrator John S. Pistole, objecting to the new airport screening procedures. Reps. Thompson and Lee wrote, “we are concerned about new enhanced pat down screening protocols and urge you to reconsider utilization of these protocols.” Reps. Thompson and Lee further said that “the TSA should have had a conversation with the American public” and should have ensured that “these changes do not run afoul of privacy and civil liberties.” EPIC has filed a lawsuit against the TSA for failing to provide an opportunity for public comment, which is required by law, and implementing a screening procedure that violates privacy. EPIC President Marc Rotenberg has called the new screening procedures “invasive, unlawful, and ineffective.” For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. DHS. (Nov. 21, 2010)
  • EPIC Files FOIA Suit to Force Disclosure of Body Scanner Radiation Risks: EPIC has filed a Freedom of Information Act lawsuit against the Department of Homeland Security, seeking records concerning radiation emissions and exposure associated with airport full body scanners. The Department recently implemented the scanners as a primary screening mechanism for all airline travelers. In August, many senators questioned the safety of the scanners. In September, Ralph Nader also sent a letter to the Senate expressing concern about radiation exposure. Earlier this year, EPIC requested DHS to release all information about radiation emissions. DHS failed to respond to EPIC’s FOIA request and when DHS also failed to reply to EPIC’s administrative appeal, EPIC filed a lawsuit in federal court. Earlier EPIC FOIA lawsuits uncovered evidence that body scanners can store and record images and that the Marshals Service had captured more than 35,000 images. For more information see, EPIC v. DHS (Body scanner images) and EPIC v. DOJ (Body scanner images). (Nov. 19, 2010)
  • Rep. Ron Paul Introduces Bill to Halt Body Scanner Program: Representative Ron Paul introduced a bill that would hold TSA agents legally accountable for airline screening procedures. Rep. Paul cited abusive screening procedures as the reason for the legislation, titled the American Traveler Dignity Act. In a floor speech, Representative Paul also endorsed National Opt-Out Day, a grassroots movement of passengers who plan to refuse the devices on November 24th. EPIC is suing in federal court to suspend the body scanner program. For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. DHS. (Nov. 18, 2010)
  • New York City Moves to Ban Body Scanners: Members of the New York City Council announced today that they would introduce legislation to ban the use of body scanners in New York City. Councilmember David Greenfield said, “I am deeply troubled that we are subjecting New Yorkers to this humiliating process, which breaches the most basic privacy rights.” EPIC President Marc Rotenberg joined the Councilmembers on the steps of City Hall for the announcement. For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Nov. 18, 2010)
  • Senators Grill TSA Official About Airport Body Scanners: In a hearing before the Senate Committee on Commerce, Science, and Transportation, Sentors asked TSA Administrator John Pistole tough questions about the privacy and health implications of airport body scanners. Senators also asked about the invasiveness of pat-downs and the problems that the machines pose for religious objectors. Pistole failed to provide proof of independent studies regarding radiation risks and consistently downplayed privacy and religious concerns. EPIC has filed a lawsuit to suspend the body scanner program, calling the program “unlawful, invasive, and ineffective.” For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Nov. 17, 2010)
  • Senate to Hold Hearings on TSA, Congress to Examine Impact of Body Scanner Program on Airline Industry: The Senate Committee on Commerce, Science, and Transportation will hold an oversight hearing on the Transportation Security Administration on November 17, 2010. Hon. John S. Pistole, the TSA Administrator, is expected to testify. EPIC has filed a lawsuit to suspend the body scanner program, calling it “unlawful, invasive, and ineffective.” Opposition to the program is growing. The Libertarian Party, the American Pilots Association, Airline CEOs, flyers rights organizations, religious groups, and others are calling for an end to invasive searches at airports. A National Opt-Out Day is scheduled for November 24. For more information, see EPIC: Whole Body Imaging and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Nov. 15, 2010)
  • Government Seeks to Exclude Religious Objectors from EPIC Body Scanner Challenge, EPIC Opposes DHS Motion: In a motion filed in the DC Circuit Court of Appeals, the Department of Homeland Security has attempted to exclude religious objector Nadhira Al-Khalili from EPIC’s body scanner lawsuit. Ms. Al-Khalili is Legal Counsel for the Council on American Islamic Relations, one of the organizations that supported EPIC’s petition, which is the basis for the challenge to the body scanner program. Ms. Al-Khalili’s claims are based on the Religious Freedom Restoration Act and Islamic modesty requirements. EPIC has opposed the government’s motion and stated that the agency is “simply afraid to have the Religious Freedom Restoration Act claims heard by this Court.” EPIC further argued that “Respondents hope by seeking to exclude Ms. Al- Khalili . . . they will avoid judicial scrutiny of an agency practice that substantially burdens the free exercise of religion in violation of federal law.” For more information, see EPIC: EPIC v. DHS (Emergency Stay, Body Scanners) and EPIC: Whole Body Imaging Technology. (Nov. 9, 2010)

Background

In 2005, the Transportation Security Administration, a component of the US Department of Homeland Security, began testing passenger imaging technology – called “whole body imaging,” “body scanners,” and “advanced imaging technology” – to screen air travelers. Body scanners produce detailed, three-dimensional images of individuals. Security experts have described whole body scanners as the equivalent of “a physically invasive strip-search.” The agency operates the body scanner devices at airports throughout the United States.

As part of a Freedom of Information Act lawsuit, EPIC obtained documents which established that the TSA required that have the ability to store, record, and transfer detailed images of naked air travelers. EPIC also obtained hundreds of pages of traveler complaints, which described the invasive program and the lack of proper signage and information regarding the machines. The images captured by FBS devices can uniquely identify individual air travelers. The TSA uses body scanners to search air travelers as they pass through the TSA’s airport security checkpoints.

The TSA recently established body scanners as primary screening. Complaints obtained by EPIC as part of its Freedom of Information Act lawsuit also revealed that the body scanner screening is effectively mandatory because the agency routinely denies air travelers alternative screening.

EPIC’s Lawsuit

EPIC’s Emergency Motion

In July 2, 2010, EPIC, human rights advocate Chip Pitts, and security expert Bruce Schneier petitioned the D.C. Court of Appeals for review of three DHS actions— one failure to act, one agency Order, and one agency Rule—of the TSA, a DHS component. The petitioners filed a motion for emergency stay, urging the Court to shut down the program as soon as possible in order to prevent irreparable harm to American travelers.

In EPIC v. DHS, No. 10-1157, petitioners argue that DHS violated the Administrative Procedures Act when it failed to act on EPIC’s May 31, 2009 petition to the agency and when it refused to process of EPIC’s April 21, 2010 petition. The Administrative Procedures Act states that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Courts have found that petitioning parties are entitled to a response on the merits. Agencies are obligated to respond within a reasonable time. EPIC argued that because TSA failed to deny or grant either of EPIC’s two petitions, the agency has violated the Administrative Procedures Act.

EPIC, et al. also argued that the DHS Privacy Office failed to comply with its statutory mandate to protect travelers’ privacy. EPIC argued that the DHS Chief Privacy Office prepared an inadequate Privacy Impact Assessment of the TSA’s body scanner test program which failed to identify numerous privacy risks to air travelers. EPIC also argued that the DHS Chief Privacy Office failed to prepare any Privacy Impact Assessment concerning the TSA’s current body scanner program. The TSA’s current body scanner program is materially different from the TSA’s body scanner test program. The program erodes, and does not sustain, privacy protections relating to the use, collection, and disclosure of air traveler’s personal information.

EPIC asserted that the body scanner program violates travelers’ Fourth Amendment rights. Courts have required that airport security searches be ;minimally intrusive, well-tailored to protect personal privacy, and neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. Searches are reasonable if they escalate in invasiveness only after a lower level of screening discloses a reason to conduct a more probing search. EPIC argued that the TSA’s body scanner program fails to meet these standards because the TSA subjects all air travelers to the most extensive, invasive search available at the outset. EPIC asserted that the TSA searches are also far more invasive than necessary to detect weapons. Alternative technologies, including passive millimeter wave scanners and automated threat detection, detect weapons with a less invasive search.

EPIC argued that the TSA’s body scanner program violates the Privacy Act because it creates a system of records containing air travelers’ personally identifiable information. The system of records is under the control of the TSA, and the TSA can retrieve information about air travelers by name or by some identifying number, symbol, or other identifying particular assigned to the individual. However, EPIC argued, the TSA failed to publish a “system of records notice” in the Federal Register, and otherwise failed to comply with its Privacy Act obligations.

Lastly, EPIC asserted that the TSA’s body scanner program violates the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person’s exercise of religion even if the burden arises from a rule of general applicability, unless the government demonstrates a compelling governmental interest, and uses the least restrictive means of furthering that interest. The TSA’s use of body scanners violates the RFRA because the capture and transmission of naked images of individuals offends the sincerely held beliefs of Muslims and other religious groups. Muslims believe in maintaining modesty and covering their bodies. Body scanners enable the capture and viewing of naked human images that violates this belief and denies observant Muslims the opportunity to travel by plane in the United States as others are able to do.

EPIC urged the Court to act as soon as possible to prevent irreparable injury to the the public.

Litigation Documents

EPIC v. the Department of Homeland Security, Case No. 10-1157 (D.C. Cir. filed July 2, 2010).

News Stories

Body Scanner Resources

7 responses to “EPIC v. DHS: Suspension of Body Scanner Program

  1. How long have we waited to see some push back against this blatantly criminal government? Not until Big Bro had his hands down the pants of John Q. Public did he seem to take notice, as usual – the malodorous do-do must sit upon one’s own doorstep before there’s a concern about human rights.

  2. Pingback: Why Does Fox News Censor Body Scanner Images While MSNBC Doesn’t Blur Them? | The News of World

  3. Don’t cry – just don’t fly!

  4. The biggest potential damage that I fear from the TSA scan/grope program is psychological. Once people accept the “right” of the powers-that-be to handle their most tender regions, they become effectively unable to protest anything at all. The conversion from humans to domesticated animials (or boiling frogs) will be complete.

  5. If we (oh how does one possibly quantify the collective consciousness?) allow them to grab our balls at the airport, next it will be at roadside checkpoints – maybe with swabs taken, or blood drawn. Indeed, they have already announced 500 mobile units which have been deployed for sporting events, bus depots, roadside screening, etc.

    I do not want my children growing up in a world where this is accepted as commonplace. How can I teach them to not let somebody touch them inappropriately, or never go off alone into a room with a stranger – when these are the very things TSA is doing right now.

    Must agree with laudyms AND rogue regarding our domestication.

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