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EPIC v. Department of Homeland Security: Whole Body Imaging (Body Scanners)

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Background

In February 2007, 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." In 2007, TSA tested whole body imaging systems at airport security checkpoints, screening passengers before they board flights. The agency provided various assurances regarding its use of whole body imaging. TSA stated that whole body imaging would not be mandatory for passengers and that images produced by the machines would not be stored, transmitted, or printed. TSA also stated that an algorithm will be applied to the image to mask the face of each passenger.

But on April 27, 2007, TSA removed from its website assurances that its whole body imaging technology would “incorporate a privacy algorithm” that will “eliminate much of the detail shown in the images of the individual while still being effective from a security standpoint.” And on February 18, 2009, TSA announced that it would require passengers at six airports to submit to whole body imaging in place of the standard metal detector search, which contravenes its earlier statements that whole body imaging would not be mandatory. On April 6, 2009, TSA announced its plans to expand the mandatory use of whole body imaging to all airports.

On June 4, 2009, the U.S. House of Representatives passed HR 2200, a bill that would limit the use of whole body imaging systems in airports. The bill prevents use of whole body imaging technology for primary screening purposes. HR 2200 was referred to the Senate for consideration on June 8, 2009. The legislation was referred to the Senate Committee on Commerce, Science, and Transportation. TSA renewed its call for mandatory body scans for all air travelers in the wake of the attempted bombing of Northwest Flight 253, which traveled from Amsterdam to Detroit on December 25, 2009.

EPIC's Freedom of Information Act Request and Subsequent Lawsuit

On April 14, 2009, EPIC filed a Freedom of Information Act (FOIA) request with the US Department of Homeland Security (DHS) for agency records that directly relate to the TSA body scanner program. EPIC requested the following agency records:

  • all documents concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals;
  • all contracts that include provisions concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals;
  • all instructions, policies, and/or procedures concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals.

DHS acknowledged receipt of EPIC's FOIA request, but failed to disclose any documents. On November 9, 2009, EPIC sued DHS to force disclosure of the body scanner documents. The suit challenged DHS's failure to disclose public records and failure to comply with the Freedom of Information Act. On the heels of EPIC's lawsuit, DHS disclosed key documents, including technical standards, but failed to produce all records demanded in EPIC's FOIA request. The lawsuit is ongoing.

Documents Obtained by EPIC Through Its Lawsuit

On January 11, 2010, EPIC released documents obtained from DHS as a result of EPIC's lawsuit. But many other documents sought by EPIC were not disclosed.

The disclosed documents include TSA Procurement Specifications for body scanners, TSA Operational Requirements for the machines, a TSA contract with L3 (a company that manufactures whole body imaging devices), and 2 TSA contracts with Rapiscan, another body scanner manufacturer (1), (2).

The documents contradict numerous assurances made by the TSA regarding the body scanners. The records demonstrate:

  • The device specifications, set out by the TSA, prove the machines’ ability to store, record, and transfer images, contrary to the representations made by the TSA
  • The device specifications, set out by the TSA, include hard disk storage, USB integration, and Ethernet connectivity that raise significant privacy and security concerns
  • The DHS Privacy office failed to adequately assess the privacy impact of these devices
  • The TSA continues to withhold critical documents from the public concerning body scanners' operation.

Legal Documents

EPIC v. the Department of Homeland Security, Case No. 09-02084(RMU) (D.D.C.filed Nov. 9, 2009)

Freedom of Information Act Documents

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