EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit)
- EPIC Urges Senate to Block Biometric Collection At US Airports: EPIC has sent a statement to the Senate Commerce Committee following a hearing on the Transportation Security Administration. EPIC urged the Committee to limit the collection of biometric data at US airports. EPIC described the growing and regulated use of biometrics in US airports, often targeting US citizens. EPIC previous pursued a significant lawsuit against the TSA to limit the use of body scanners. EPIC is currently seeking records from Customs and Border Protection concerning the agency's use of facial recognition for a biometric entry/exit program at airports. EPIC has also objected to a proposal to increase the collection of biometric data for the TSA Pre-Check program. (Sep. 28, 2017)
- EPIC Obtains Final Report on "Face ePassport Air Entry Experiment": As the result of a Freedom of Information Act request, EPIC has obtained a report on the use of face recognition on travelers entering the United States at Dulles Airport. The report was obtained after EPIC filed a lawsuit against Customs and Border Protection for documents about the agency's biometric entry/exit program, expedited by Executive Order 13769. As the report was heavily redacted, EPIC's FOIA lawsuit is ongoing. In a statement to the House Homeland Security Committee earlier this year, EPIC warned that biometric identification techniques, such as facial recognition, lack proper privacy safeguards. EPIC has extensively litigated airport screening techniques, including EPIC v. TSA, concerning airport body screening. (Sep. 8, 2017)
- TSA Proposal to Inspect Books at US Airports Raises First Amendment Concerns: The TSA is considering a requirement to remove books from carry-on luggage for inspection during security screenings. The procedure raises concerns that individuals may be singled out for their religious and political beliefs, implicating core First Amendment values. In 2015 a college student won a $25,000 settlement after he was detained by the TSA for carrying Arabic flash cards. EPIC has pursued litigation against invasive airport screening techniques. In EPIC v. DHS, EPIC successfully sued to require the Department of Homeland Security to obtain public comment on the use of body scanners in U.S. airports. The litigation also led to the removal the backscatter x-ray devices from airports. EPIC recently filed a FOIA request to determine why US travelers returning to the United States are subject to biometric identification. In numerous cases, including a recent case before the US Supreme Court, EPIC has argued for the freedom to without government surveillance. (Jun. 27, 2017)
- DC Circuit Rules in Second EPIC Airport Body Scanner Case: In a cursory per curium opinion, the D.C. Circuit denied EPIC's petition for review of the TSA's final rule mandating body scanners in U.S. airports. EPIC argued in EPIC v. DHS II that the TSA had failed to justify body scanners as compared with less invasive, more effective screening techniques, such as magnometers combined with explosive trace detection. Public comments overwhelmingly favored EPIC's recommendations to the federal agency. EPIC also argued that the TSA's decision to end the opt-out was contrary to the DC Circuit's earlier opinion EPIC v. DHS I which held that passengers could opt-out of the invasive screening technique. As Judge Ginsburg explained in the earlier case, "Despite the precautions taken by the TSA, it is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not." Judge Ginsburg further said, "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." (May. 30, 2017)
- EPIC to Congress: Examine TSA Secrecy: EPIC has sent a statement to the House Committee on Homeland Security for an oversight hearing on the Transportation Security Administration. EPIC has objected to the TSA's refusal to release information the agency designated as "sensitive security information" that is pertinent to EPIC's ongoing case against TSA regarding airport body scanners. EPIC said that the TSA is "seeking to hide its decision making behind this cloak of secrecy." Congress also criticized the TSA's use of the SSI designation in an extensive report on "Pseudo Classification." In the statement for the Committee, EPIC also objected to the eye scanning of US travelers at US airports. (Apr. 26, 2017)
- EPIC to Congress: Examine TSA Secrecy: EPIC has sent a letter to the House Committee on Oversight for a hearing on the Transportation Security Administration. EPIC has objected to the TSA's refusal to release information designated as "sensitive security information" that is pertinent to EPIC's ongoing case against TSA regarding airport body scanners. EPIC said that "seeking to hide its decision making behind this cloak of secrecy." The House Committee has also criticized the agency's use of the SSI designation. EPIC also raised concerns about the eye scanning of US travelers at US airports as well as the TSA's statement that they will no longer accept drivers licenses from states that oppose "REAL ID". (Mar. 2, 2017)
- 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)
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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