EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit)
- EPIC Files Suit to Block "Invasive and Ineffective" Airport Body Scanner Program: EPIC has filed the opening brief in EPIC v. TSA II with the federal appeals court in Washington, DC, challenging the Transportation Security Administration's continued use of body scanners in US airports. TSA issued a regulation mandating the use of body scanners across the country more than five years after the court in EPIC v. TSA ordered the agency to "promptly" solicit public comments on the controversial body scanners program and nearly a decade after the agency deployed the scanners without public comments. EPIC told the court that the TSA's regulation entrenches body scanners over more effective less intrusive screening techniques, and undermines the legal right of passengers to opt out. EPIC wrote that the TSA has failed to "justify the use of invasive screening techniques, or to provide the public with an opportunity to respond to the denial of the passenger opt-out right." (Sep. 27, 2016)
- EPIC Sues TSA to Block Mandatory Body Scanners at US Airports: EPIC has filed a lawsuit challenging the Transportation Security Administration's regulation for airport body scanners. The TSA announcement came nearly five years after a federal appeals court ordered the agency to "promptly" solicit public comments on the controversial screening procedure. Public comments overwhelmingly favored less invasive security screenings. But the TSA decided it may now mandate body scanners at US airports. In 2011, EPIC challenged the intrusive and ineffective TSA screening procedure. EPIC's new lawsuit challenges the regulation because it "denies passengers the right to opt out" of body scanner screening. EPIC also challenged the effectiveness of airport body scanners and the TSA's failure to recommend less invasive security screening. (May. 2, 2016)
- TSA Releases New Body Scanner Document to EPIC: In response to an EPIC FOIA request, the Transportation Security Administration has released a document describing the technical capabilities of the airport body scanners. EPIC previously obtained documents from TSA revealing that body scanners can record, store, and transmit digital strip search images of airline passengers. Last month, the TSA issued a regulation on airport body scanners, nearly five years after a federal appeals court ordered the agency to "promptly” undertake a rule making. In 2011, EPIC successfully challenged the TSA's unlawful deployment of airport body scanners. Despite public comments that overwhelmingly favor less invasive security screenings, the TSA plans to use invasive body scanners at US airports. The TSA also said it may mandate airport body scanners, even though the agency previously told the D.C. Circuit that the body scanner program was optional and the federal appeals court upheld the program, relying on the agency’s statements. (Apr. 25, 2016)
- TSA Ignores Federal Court, Public Comments and Mandates Airport Body Scanners: The Transportation Security Administration has issued a final rule on airport body scanners, nearly five years after the D.C. Circuit Court of Appeals ordered the agency to "promptly" solicit public comments on the controversial scanners. In 2011, EPIC successfully challenged the TSA's unlawful deployment of airport body scanners. Despite public comments that overwhelmingly favor less invasive security screenings, the agency will continue to use invasive body scanners at airports. The agency also states that it may mandate airport body scanners. EPIC and 25 organizations have urged Congress to hold a hearing on TSA's decision to end the opt-out for airport body scanners. The agency previously informed the D.C. Circuit that the body scanner program was optional. The Court concluded because "any passenger may opt-out of AIT screening in favor of a patdown" there was no violation of the Fourth Amendment. (Mar. 2, 2016)
- EPIC, Coalition Call for Congressional Hearings on Unlawful TSA Mandate for Body Scanners: EPIC and 25 organizations have urged Congress to hold a hearing on TSA's decision to end the opt-out for airport body scanners. Dozens of organizations petitioned the DHS secretary in 2010 to solicit public comments on the original program. In EPIC v. DHS the lawsuit that followed, the D.C. Circuit ruled that TSA violated federal law when it installed body scanners in airports without public comment. The agency said at the time that the body scanner program was optional. The Court also concluded because "any passenger may opt-out of AIT screening in favor of a patdown" there was no violation of the Fourth Amendment. (Jan. 13, 2016)
- Ignoring Federal Law, TSA Drops Opt-Out Option for Body Scanners: The TSA has used a "Privacy Impact Assessment Update" to announce an unlawful procedure for screening air travelers in the United States. The agency claims that it may "mandate body scanner screening for some passengers." In EPIC v. DHS (Suspension of Body Scanner Program, the D.C. Circuit Court of Appeals ruled that the screening was Constitutional because passengers could always opt out. As Judge Ginsburg explained, "any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive. "The TSA has also failed to "act promptly," as the Court mandated, to finalize the legal authority for the program. (Dec. 19, 2015)
- TSA Continues Delay of Legal Authority for Airport Body Scanners: The Transportation Security Administration is expected to issue a final rule on airport body scanners by March 3, 2016, nearly five years after the D.C. Circuit Court of Appeals ordered the agency to "promptly" solicit pubic comments on the controversial scanners. In 2011, EPIC successful challenged the TSA's unlawful deployment of airport body scanners. Following EPIC's lawsuit, backscatter x-ray devices were removed from U.S. airports. Still, the agency continues to ignore public comments that overwhelmingly favor less invasive security screenings. (Nov. 24, 2015)
- D.C. Circuit Orders TSA to Produce Schedule for Final Rule on Body Scanners: The Court of Appeal for the D.C. Circuit today ordered TSA to comply with the ruling in EPIC v. DHS and conduct an "expeditious" rulemaking on the use of body scanners at airports. EPIC successfully sued TSA in 2011 to compel notice-and-comment rulemaking after the agency failed to solicit public comments as required by law. EPIC said the body scanner program was "unlawful, invasive, and ineffective." The backscatter x-ray devices were subsequently removed from U.S. airports, though the millimeter devices remain. In 2015 the Competitive Enterprise Institute filed a petition to compel TSA to issue a final rule as required by the EPIC v. DHS mandate. TSA now has 30 days to submit a rulemaking plan to the court. (Oct. 23, 2015)
- Security Experts: EPIC Correct About Body Scanners-Invasive and Ineffective: The first independent analysis of backscatter x-ray body scanners corroborate the claims EPIC and others have made for several years: The scanners are invasive and ineffective. In a detailed report published in 2005, EPIC warned that the x-ray body scanners amounted to a virtual strip search and were an ineffective means of airport security. Freedom of Information Act documents later obtained by EPIC revealed that TSA could disable the body scanner's privacy settings, the nude images could be stored on the machines, and the scanners ran on a standard operating system making them vulnerable to outside security threats. EPIC and a coalition of civil liberties organizations then petitioned DHS Secretary Napolitano to suspend the program. When the DHS failed to do so, EPIC sued the agency. The D.C. Circuit Court of Appeals ruled in EPIC v. DHS that the agency must begin a public rule making. The backscatter X-ray scanners were subsequently removed from US airports. For more information, see EPIC: EPIC v. DHS (Suspension of Body Scanner Program) and EPIC: Whole Body Imaging Technology. (Aug. 22, 2014)
- Congress Investigates Airline Privacy Practices: Senator John Rockefeller (D-WV) is currently seeking information from ten U.S. airlines concerning how airlines safeguard consumer traveler data. Senator Rockefeller has requested information regarding: (1) the type of information airlines collect; (2) airlines' data retention periods; (3) airline privacy and security safeguards governing consumer information; (4) whether consumers may access and amend their information; (5) whether airlines sell or disclose consumer information and if so, to whom do they disclose the consumer data; and (6) how airlines inform consumers about airline privacy policies governing consumer information. EPIC routinely urges the Department of Homeland Security to provide privacy protections for air travelers and end the agency's secret "risk-based" passenger profiling. For more information, see EPIC: Air Travel Privacy, EPIC: Passenger Profiling, EPIC: Secure Flight, and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Aug. 20, 2014)
In EPIC v. Department of Homeland Security, EPIC has sought the release of documents held by the agency regarding mobile body scanners.
In 2005, the Transportation Security Administration (“TSA”), a Department of Homeland Security (“DHS”) component, began testing imaging technology (body scanners) to screen air travelers. EPIC is challenging the Department of Homeland Security’s use of body scanners at US airports.
Use of the technology has expanded beyond air travel to include use at other venues and the use of mobile scanning technology. In March 2010, the DHS released a “Surface Transportation Security Priority Assessment,” which detailed the agency’s plans to conduct risk assessments and implement new body scanner technology in America’s surface transportation systems, including “mass transit, highways, freight rail, and pipelines . . . .” In 2006 and again in 2009, body scanner technology was tested on Port Authority Trans-Hudson New York/New Jersey (“PATH”) train riders. News stories have also reported the deployment of mobile body scanner technology in vans that are able to scan other vehicles while driving down public roadways.
In response to a 2010 Freedom of Information Act request, EPIC obtained documents from the DHS indicating that the agency has spent millions of dollars developing and acquiring mobile body scanner technology, as well as body scanner technology for use in surface transit and other high occupancy venues. According to the documents obtained by EPIC, the federal agency plans to expand the use of these systems to monitor crowds, peering under clothes and inside bags away from airports.
EPIC’s Freedom of Information Act Requests and Subsequent Lawsuit
On November 24, 2010, 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 detailing plans by federal law enforcement agencies to implement body scanner technology in the surface transportation context;
- all contracts, proposals, and communications with private transportation and shipping companies (including, but not limited to NJ PATH, Amtrak, and Greyhound) regarding the implementation of body scanner technology in surface transit;
- all contracts, proposals, and communications with states, localities, tribes, and territories (and their subsidiaries or agencies) regarding the implementation of body scanners in surface transportation;
- all documents detailing plans by federal law enforcement agencies to use “Z Backscatter Vans” or similar technology;
- all contracts, proposals, and communications with the manufacturers of the “Z Backscatter Vans” or similar technology;
- all contracts, proposals, and communications with states, localities, tribes, and territories (and their subsidiaries or agencies) regarding the implementation of “Z Backscatter Vans” or similar technology;
- all images generated by the “Z Backsscatter Vans” or body scanner technology that has been used in surface transit systems.
DHS’s Science and Technology Directorate (“S&T”) acknowledged EPIC’s FOIA request and identified 1,156 pages of documents responsive to the request. Of the 1,156 pages, S&T released 15 in their entirety, another 158 documents were released in redacted form, and the remaining 983 documents were withheld in their entirety. In withholding the 983 documents, S&T invoked various exemptions under FOIA.
On April 14, 2011, EPIC filed an administrative appeal [link to appeal?] challenging the partial withholding of the 158 documents and the complete withholding of the 983 documents. S&T failed to respond to EPIC’s administrative appeal.
On May 20, 2011, EPIC sued DHS to force production of all agency records responsive to EPIC’s FOIA request.
EPIC v. the Department of Homeland Security, Case No. 1:2011-cv-00945 (D.D.C. filed May 20, 2011)
- EPIC's Complaint Against DHS
- DHS' Answer (pdf)
- DHS' Motion for Summary Judgment (pdf)
- EPIC's Opposition To DHS' Motion For Summary Judgment, Cross-Motion For Summary Judgment, And Request For Oral Hearing (pdf)
- EPIC's Memorandum Of Points And Authorities In Opposition To DHS' Motion For Summary Judgment And In Support Of EPIC's Cross-Motion For Summary Judgment (pdf)
- DHS' Reply In Support Of Summary Judgment And Opposition To EPIC's Motion For Summary Judgment (pdf)
- EPIC's Reply In Support Of Its Cross-Motion For Summary Judgment (pdf)
- Memorandum Order for Segregability Analysis (pdf)
- Memorandum Opinion Granting DHS'S Motion For Summary Judgment, Denying EPIC's Motion For Summary Judgment, And Granting EPIC's Motion For Attorney’s Fees And Costs (pdf)
- Order Granting DHS's Motion For Summary Judgment, Denying EPIC's Motion For Summary Judgment, And Granting EPIC's Motion For Attorney's Fees And Costs (pdf)
- Stipulation Of Settlement And Dismissal With Prejudice (pdf)
- Privacy Impact Assessment for the Rail Security Pilot Study Phase II at PATH (July 12, 2006)
- Backscatter X-Ray for Suicide Bomber Detection slides
- Department of Homeland Security Science & Technology Directorate agreement with Transportation Security Administration regarding Standalone Backscatter X-ray System (June 18, 2008)
- Research and Development Award Announcement for Rapiscan with Contracts Northeastern University Statements of Work with Contracts
- Harvard Students Challenge TSA, Katie Johnston Chase, Boston.com, December 2, 2010
- Now Mobile Devices Will Scan Your Naked Body On The Streets, Paul Joseph Watson, Prison Planet.com, January 8, 2010.
- Full-Body Scan Technology Deployed in Street-Roving Vans, Andy Greenberg, Forbes, Aug. 24, 2010.
- Homeland Security looked into covert body scans, Thomas Frank, USA Today, March 4, 2011.
- Full Body Scanners Going Mobile, M.J. Harris, The Liberty Guardian, January 8, 2010.
- Counter-Terror Operation Stops Trucks on I-20, WSB-TV Atlanta, Sept. 29, 2010.
- DHS seeks systems for covert body scans, documents show, Jaikumar Vijayan, ComputerWorld, March 2, 2011.
- DHS interested in systems for covert body scans, Homeland Security NewsWire, March 4, 2011.
- Documents Reveal TSA Research Proposal to Body-Scan Pedestrians, Train Passengers, Andy Greenberg, Forbes, March 2, 2011.
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Communications Law and Policy
Jerry Kang and Alan Butler