EPIC - EPIC v. DHS (Suspension of Body Scanner Program)

EPIC v. DHS (Suspension of Body Scanner Program)

Top News |
Background |
EPIC's Lawsuit |
Legal Documents |
News Items |
EPIC: Body Scanner Resources

Introduction

EPIC has filed a lawsuit to suspend the deployment of body scanners at US airports, pending an independent review. On January 6, 2011, EPIC filed its reply brief, stressing its core assertion that "the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers." EPIC asserts that the federal agency's controversial program violates the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment. The District of Columbia Circuit Court of Appeals will hear oral argument in the case on March 10, 2011.

Top News

Video, Blog Post Raise New Questions About Airport Body Scanners: A popular video "How To Get Anything Through TSA Nude Body Scanners" show that it is easy to bypass airport body scanners by hiding materials perpendicular to the plane of the scanning devices. The video also notes that traditional metal detectors, now being removed from US airports, would routinely alert to the presence of metallic objects. Still more interesting may be the recent blog post by a 25-year FBI agent, expert in aviation security, who writes that the "TSA has never foiled a terrorist plot or stopped an attack on an airliner" and that "the entire TSA paradigm is flawed." In a federal lawsuit, EPIC challenged the TSA airport scanner program, calling it "invasive, unlawful, and ineffective." For more information, see EPIC v. DHS (Suspension of body scanners). (Mar. 9, 2012)
EPIC Obtains New Documents on DHS Media Monitoring, Urges Congress to Suspend Program: EPIC has submitted a letter to Congress following a hearing on DHS monitoring of social networks and media organizations. In the letter, EPIC highlights new documents obtained as a result of a FOIA lawsuit and points out to inconsistencies in DHS' testimony about the program. Though DHS testified that it does not monitor for public reaction to government proposals, the documents obtained by EPIC indicate that the DHS analysts are specifically instructed to look for criticism of the agency and then to redirect reports that would otherwise be circulated to other agencies. EPIC wrote that the DHS' monitoring program should be suspended, as it exceeds the agency's statutory authority and chills First Amendment activity. For more information, see EPIC: EPIC v. DHS: Media Monitoring. (Feb. 23, 2012)
Congress Grills Department of Homeland Security : Members of a House Committee today questioned DHS officials about the agency's monitoring of social networks and media organizations for information that "reflects adversely" on the agency or the federal government. Several members expressed support for EPIC's proposal that DHS suspend the program, warning that this activity violates First Amendment rights. New questions also arose when the DHS witnesses claimed that no other federal agencies were engaged in similar practices. According to many news sources, the FBI wants to monitor social media. The House hearing was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. For more information see: EPIC v. Department of Homeland Security: Media Monitoring. (Feb. 16, 2012)
EPIC Asks Congress to Suspend DHS Social Network Monitoring Program: In a Statement for the Record, EPIC has asked the House Committee on Homeland Security to suspend a DHS program that has permitted the agency to gather comments critical of the agency and the government by monitoring social networks and media organizations. The hearing on "DHS Monitoring of Social Networking and Media: Enhancing Intelligence Gathering and Ensuring Privacy" was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. The documents, obtained as a result of EPIC's Freedom of Information Act lawsuit, include instructions from the DHS to General Dynamics to monitor media reports that "reflect adversely" on the agency or the federal government. For more information see: EPIC v. Department of Homeland Security: Media Monitoring. (Feb. 15, 2012)
Congress to Hold Hearing on Department of Homeland Security Social Network Monitoring: On February 16, 2012, the House Committee on Homeland Security will hold a hearing on "DHS Monitoring of Social Networking and Media: Enhancing Intelligence Gathering and Ensuring Privacy." The hearing was called after EPIC obtained nearly 300 pages of documents, as a result of a Freedom of Information Act lawsuit, detailing the Department of Homeland Security's monitoring of social networks and media organizations. The documents included guidelines from DHS instructing General Dynamics to monitor for media reports that "reflect adversely" on the agency or the federal government. For more information see: EPIC v. Department of Homeland Security: Media Monitoring. (Feb. 6, 2012)
Supreme Court to Hear Case About Enhanced Search Techniques: The US Supreme Court has decided to review Florida v. Jardines, a case that addresses whether a dog sniff at the front door of a home is a search that requires probable cause. This case follows Illinois v. Caballes, a 2005 case in which the Court held that a dog sniff around a car during a routine traffic stop was not a search. The Florida Supreme Court ruled that Caballes was inapplicable in the case, and that a dog sniff in front of a home is a Fourth Amendment search. This case also implicates the government's use of "enhanced" investigative techniques that are designed to detect contraband. Because these techniques are imperfect and also allow the government to search for material that is not illegal, EPIC has argued that a Fourth Amendment probable cause standard should apply. For more information, see EPIC: EPIC v. DHS (Airport Body Scanners). (Jan. 6, 2012)
EPIC Urges Court to End DHS Delay in Seeking Public Input on Airport Body Scanners: EPIC has asked a federal court seeking to enforce a July 15, 2011 order requiring the Department of Homeland Security to take public comment on the agency's controversial airport body scanner program. As a result of an EPIC lawsuit, the DC Circuit Court of Appeals ruled that the agency violated federal law when it installed body scanners in airports for primary screening without first soliciting public input. In July, the Court ordered Homeland Security to "promptly" seek public comment, but the agency has failed to respond. EPIC, and a coalition of privacy and civil liberties organizations, first petitioned DHS to undertake a public rulemaking in 2009. This is EPIC's second motion to compel the agency to comply with the court's order. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology. (Dec. 23, 2011)
EPIC Asks Court to Require Release of Documents About Body Scanner Radiation Risks: EPIC has filed a reply motion in EPIC v. DHS, No. 1:11-cv-01991-ABJ, a Freedom of Information Act lawsuit for information, held by the DHS, about the radiation risks of airport body scanners. EPIC is asking the court to force the agency to disclose documents about radiation testing results, agency fact sheets on radiation risks, and an image produced by the machines. A recent report from ProPublica states that the "U.S. Government Glossed Over Cancer Concerns As It Rolled Out Airport X-Ray," and the European Union recently prohibited the use of "back-scatter x-ray" devices in EU airports. EPIC has already obtained hundreds of pages of documents discussing the risks of radiation exposure. For more information, see EPIC: EPIC v. DHS - Full Body Scanner Radiation Risks. (Dec. 5, 2011)
European Union Limits Use of Airport Body Scanners: The European Union has adopted strict new guidelines limiting the use of body scanners at EU airports. Under the new guidelines, European Union member states may only deploy airport body scanners if they comply with new regulations that protect health, privacy, and fundamental rights. The European Commission has also prohibited any devices that store, record, or transfer images of travelers as well as devices that display an image of the naked human body. As a result, backscatter x-ray devices are now effectively prohibited in airports in the European Union. The European Commission has also made clear that passengers may not be required to go through body scanners, following the conclusion reached by the federal appellate court in the United States in the EPIC v. DHS case, which held that passengers have a legal right to opt-out of body scanners. The body scanners have not done well during trials in Europe. Most recently a test in Germany found that the devices were ineffective. For more information, see EPIC: Whole Body Imaging Technology and EPIC: EPIC v. DHS (Suspension of the Body Scanner Program). (Nov. 14, 2011)
EPIC Asks Court to Require DHS Disclosure of Documents Detailing Body Scanner Radiation Risks: EPIC has filed a motion for summary judgment in EPIC v. DHS, No. 1:11-cv-01991-ABJ, a pending Freedom of Information Act lawsuit against the Department of Homeland Security for information about the radiation risks posed by body scanners. EPIC has asked the court to force the agency to disclose documents containing radiation testing results, agency fact sheets on body scanner radiation risks, and an image produced by the machines. A new report from ProPublica states that the "U.S. Government Glossed Over Cancer Concerns As It Rolled Out Airport X-Ray." EPIC has already obtained hundreds of pages of documents detailing the radiation risks presented by the machines. For more information, see EPIC: Body Scanners and Radiation Risks (FOIA). (Nov. 1, 2011)

Background

In 2005, the Transportation Security Administration ("TSA), a component of the US Department of Homeland Security ("DHS"), began testing passenger imaging technology - called “whole body imaging,” "body scanners," "full 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 establish that the TSA required the machines to be capable of storing, recording, and transferring 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 complaints establish that the body scanners are effectively mandatory, because the agency routinely denies air travelers alternative screening opportunities.

The images captured by body scanner 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.

EPIC's Lawsuit

EPIC is suing in the District of Columbia Circuit Court of Appeals to challenge the TSA's unilateral decision to make body scanners the primary screening technique in U.S. airports. Three frequent air travelers are joining EPIC in the lawsuit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations Legal Counsel Nadhira Al-Khalili. The Petitioners have brought claims under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment. EPIC is seeking the suspension of the body scanner program, pending independent review.

Procedural History

On July 2, 2010, EPIC petitioned the D.C. Circuit 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. On July 15, 2010, the federal agency opposed the motion. On July 20, 2010, EPIC filed a reply to the opposition. On September 1, 2010, the Court ordered the motion be denied, and set out the briefing schedule.

On November 1, 2010, EPIC filed its opening brief, arguing that the DHS "has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history." EPIC further argued that the TSA "must comply with relevant law, and it must not be permitted to engage in such a fundamental change in agency practice without providing the public the opportunity to express its views."

On November 5, 2010, the Department of Homeland Security moved to exclude religious objector Nadhira Al-Khalili from the 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 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."

On December 23, 2010, Respondent DHS filed its answer brief, again urging the Court to exclude Nadhira al-Khalili as a religious objector in the suit. Respondents also asserted that the body scanner program was not substantial enough of a change in agency policy to constitute a "rule" under the Administrative Procedures Act. EPIC has previously argued that the body scanner program is "the single most significant change in air traveler screening in the United States since the creation of the agency," adding that the agency has considered far less significant changes to be rules, including policies relating to butane lighters and transportation worker identity documents.

On January 6, 2011, EPIC filed a reply brief, arguing that "the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers, the agency’s rule should be set aside and further deployment of the body scanners should be suspended." On the same day, EPIC hosted a one-day public conference "The Stripping of Freedom: A Careful Scan of TSA Security Procedures" in Washington, DC. Oral Argument in the case is scheduled for March 10, 2011.

EPIC's Legal Arguments

In EPIC v. DHS, No. 10-1157, Petitioners argue that DHS violated the Administrative Procedure 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 Procedure 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.

EPIC also argues that the DHS Privacy Office failed to comply with its statutory mandate to protect travelers’ privacy. The DHS Chief Privacy Office prepared an inadequate Privacy Impact Assessment of the TSA’s body scanner test program that failed to identify numerous privacy risks to air travelers. Also, 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 asserts 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 argues 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 asserts 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 argues 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.

EPIC asserts 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.

Lastly, EPIC argues that the TSA's body scanners violate the Video Voyeurism Prevention Act of 2004, which specifically prohibits the intentional “capture [of] an image of a private area of an individual without their consent . . . under circumstances in which the individual has a reasonable expectation of privacy,” when such circumstances are known. As the documents that EPIC obtained through FOIA litigation demonstrate, the devices are specifically designed to capture such images. Furthermore, as evidenced by the ground swell of grassroots opposition, the public is clearly voicing a reasonable expectation of privacy.