EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit)
- Public Opposes TSA Nude Body Scanners: Following a court mandate that the Transportation Security Administration receive public comment on airport body scanners, the public overwhelmingly opposes invasive nude body scanners. The court mandate was in response to EPIC's lawsuit in EPIC v. DHS, where EPIC successfully challenged the TSA's unlawful deployment of airport body scanners. The TSA will accept comments until June 24, 2013. The public has submitted almost 2,000 comments noting various problems with the scanners, including privacy violations, potential health risks, and the machine's inability to accurately detect threats. EPIC has recently filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanner radiation risks and threat detection software. For more information, see EPIC: Comment on the TSA Nude Body Scanner Proposal, EPIC: Radiation Risks lawsuit, and EPIC: ATR lawsuit. (Apr. 23, 2013)
- EPIC Appeals FOIA Decisions Concerning Body Scanner Information: EPIC has filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanners from the Department of Homeland Security and the Transportation Security Administration. EPIC filed FOIA requests with the agencies seeking records related to radiation risks from body scanners and the threat detection software the machines use. The TSA is currently developing formal rules for the use of body scanners in response to a court order in one of EPIC's previous cases. Body scanners allow routine digital strip searches of individuals who are not suspected of any crime. For more information, see EPIC: Radiation Risks lawsuit and EPIC: ATR lawsuit, and EPIC: Suspension of Body Scanner Program. (Apr. 16, 2013)
- EPIC Obtains News Information on TSA Body Scanner Program: The Transportation Security Administration was forced to disclose additional information regarding the Agency's controversial body scanner program after EPIC prevailed in a lawsuit against the Agency. In March 2013, Judge Royce Lamberth held that the Agency had unlawfully redacted certain information from records released to EPIC under the Freedom of Information Act containing details on software modifications made to the scanners. In response to a separate lawsuit filed against the Department of Homeland Security regarding the Agency's authority to deploy the devices, the TSA has initiated a process to allow the public to comment on the program. EPIC is recommending that the TSA adopt more effective screening procedures. For more information, see and EPIC v. DHS (Suspension of Body Scanner Program). (Apr. 10, 2013)
- TSA Begins Court Ordered Rulemaking on Body Scanner Program, EPIC Urges Public Comment: The TSA announced today that it will begin a public comment process on its airport screening procedures. The action follows from a 2011 court order in EPIC v. DHS. In that case, the Federal Appeals Court for the DC Circuit found that the agency unlawfully deployed body scanners in US airports. In a proposed two-sentence change to the agency's extensive regulations, the TSA seeks to grant itself authority to continue to deploy Nude Body Scanners ("NBS") without establishing privacy safeguards. EPIC, which brought the successful challenging to the TSA program, is urging public comment on the agency proposal. EPIC is recommending that the TSA adopt more effective screening procedures. If the TSA continues with Nude Body Scanner program, EPIC said the agency should make clear the right of individuals to opt-out as well as require privacy filters for all devices. For more information, see EPIC v. DHS (Suspension of Body Scanner Program). (Mar. 26, 2013)
- EPIC Prevails in Two FOIA Cases, Obtains Further Details on Body Scanners: A federal judge has granted EPIC victories in two Freedom of Information Act cases involving the controversial airport body scanners. Judge Royce Lamberth in Washington, DC held that the Department of Homeland Security must turn over two safety reports detailing radiation output by the scanners and a set of power point slides containing details on automated target recognition software. The agency previously claimed it was not required to release the documents to EPIC. EPIC has pursued several related Freedom of Information Act cases as a challenge to the deployment of the devices. In 2011, the DC Circuit of Appeals ruled in EPIC v. DHS that the agency must receive public comments on the decision to deploy body scanners for primary screening. For more information see: EPIC: Whole Body Imaging Technology and EPIC v. DHS (Suspension of Body Scanner Program). (Mar. 8, 2013)
- EPIC Obtains DHS Body Scanner Training Manuals, New Questions About Absence of Privacy Safeguards: In response to an EPIC FOIA request, the Department of Homeland Security has released documents about the use of body scanners by the US Secret Service. EPIC sought information about the types of images that body scanners capture, the length of time the images can be stored, and safeguards for maintaining the integrity and security of the captured images. EPIC also asked about radiation body scanner radiation risks. EPIC received the contract of sale between the Government and Rapiscan, the body scanner manufacturer; and the Secret Service’s training manuals for instructing new recruits on the operation of body scanners. The training materials make no mention of data privacy. For more information, see EPIC: EPIC v. DHS and EPIC: Body Scanners. (Feb. 15, 2013)
- TSA to Pull Naked Body Scanners Out of US Airports: The US Transportation Security Administration will end the contract for backscatter x-ray devices. As a consequence, all devices that produce a detailed naked image of air travelers will be removed from US airports. Beginning in 2005, EPIC and then a coalition of privacy advocates, scientists, legal experts and lawmakers urged the TSA not to deploy the devices. The groups petitioned DHS Secretary Napolitano to suspend the program pending a thorough review. The agency went forward and EPIC sued. In EPIC v. DHS, the DC Circuit held that the devices could be used as long as passengers were able to opt-out. The federal appeals court also ordered the agency to "promptly" begin a public rulemaking. That process will likely begin in March 2013. For more information, see EPIC: EPIC v. DHS and EPIC: Body Scanners. (Jan. 18, 2013)
- National Academy of Sciences to Undertake Independent Assessment of Airport Body Scanners: After years of pressure from political leaders, civil liberties and health advocates, including EPIC, there will be an independent review of the health risks posed by backscatter x-ray devices. A National Academy of Sciences committee will assess “whether exposures comply with applicable health and safety standards” for passengers and airport employees. The study is limited to radiation and safety testing, and will not examine the privacy implications or effectiveness of the x-ray machines. In 2012, both the House and the Senate introduced legislation calling for an independent assessment of the controversial devices. Europe has also effectively banned the use of backscatter X-ray devices. EPIC has a FOIA lawsuit against DHS concerning body scanner radiation risks. In response to another EPIC lawsuit, the agency will begin a public comment process on the airport screening program in March 2013. For more information see: EPIC: Whole Body Imaging Technology and Body Scanners. (Dec. 19, 2012)
- EPIC Urges Congress to Suspend Funding for Body Scanner Program: In a letter to Representatives Mike Rogers and Shelia Jackson-Lee, EPIC has asked Congress to suspend funding for the airport body scanner program until the TSA has completed a court-ordered public rulemaking. The letter follows a House oversight hearing where members of Congress learned that the TSA had shipped millions of dollars worth of backscatter X-ray devices to warehouses. Earlier the TSA stated that it was moving the devices to smaller airports for efficiency reasons. Backscatter X-ray devices are currently prohibited in Europe. For more information, see EPIC: EPIC v. DHS (Suspension of Body Scanner Program), EPIC: Whole Body Imaging Technology and Body Scanners ("Backscatter" X-Ray and Millimeter Wave Screening) and EPIC: EPIC: Body Scanner FAQ. (Nov. 29, 2012)
- Congress to Scrutinize TSA's "Scanner Shuffle": The House Subcommittee on Transportation Security is holding an oversight hearing this week, "TSA's Recent Scanner Shuffle: Real Strategy or Wasteful Smokescreen?" The hearing announcement follows a decision by the TSA to remove the backscatter x-ray devices from major US airports. In a statement for the record, EPIC highlighted public concerns about the use of body scanners, including health and privacy risks, and the failure of the TSA to take public comments on the program. In July 2011, the federal appeals court in Washington, DC ruled that that the Department of Homeland Security must "act promptly" to receive public comments. For more information, see EPIC: EPIC v. DHS (Suspension of Body Scanner Program), EPIC: Whole Body Imaging Technology and Body Scanners ("Backscatter" X-Ray and Millimeter Wave Screening) and EPIC: EPIC: Body Scanner FAQ. (Nov. 14, 2012)
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.02084 (D.D.C. filed May 20, 2011)DHS’s Production of Records to EPIC includes:
- 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.