By Electronic Privacy Information Center

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.

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 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.

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