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."

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