Comment on the TSA Nude Body Scanner Proposal
Following a court mandate in EPIC v. Department of Homeland Security (DHS), the Transportation Security Administration (TSA) is currently soliciting public comments on its airport 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.COMMENT NOW - express your views on the TSA Body Scanner program:
- Describe the devices as "Nude Body Scanners."
- Support "Regulatory Alternative #3."
- Support the right of passengers to opt out and demand generic image filters
- Describe any personal experiences
- Post the link on Facebook
- Tweet the link
- Urge your friends to comment
- 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)
- 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)
- California Court Strikes Down DNA Collection Law: A state appeals court in California has struck down a state law that requires collection of DNA from people arrested on felony charges. The California court ruled that DNA collection by a cheek swab is an unreasonable search and seizure prohibited by the state's constitution. "The California DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees," wrote the court. The appeals court also said that the U.S. Supreme Court's ruling in Maryland v. King, which upheld a similar law in Maryland, did not apply in this case because of significant differences between each state's DNA collection laws. EPIC has participated as amicus in several cases concerning the collection of DNA. In Maryland v. King, EPIC argued that the government collection of DNA opens the door to misuse and threatens personal privacy. For more information, see EPIC: Maryland v. King, EPIC: Maryland v. Raines, EPIC: Kohler v Englade, EPIC: US v. Kincade, EPIC: Herring v. US, EPIC: Comments on TSA Biometric Systems, and EPIC: Genetic Privacy. (Dec. 4, 2014)
- 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)
- Homeland Security Revised Traveler Screening Violates Federal Privacy Act: The Transportation Security Administration and Customs and Border Protection, components of the Department of Homeland Security, have announced plans for agency record disclosures without Privacy Act notifications. The agencies Common Operating Picture ("COP") program would permit TSA and CBP to exchange personal information held by the agencies to place travelers on federal watch lists. Although TSA and CBP have proposed new uses for personal data, the agencies have declined to solicit public comments as required by the Privacy Act. Currently, the agencies use the Automated Targeting System to perform "risk assessments." EPIC has called for DHS to suspend "risk-based" passenger profiling and to make public the algorithms that are used to assess travelers. For more information, see EPIC: Secure Flight, EPIC: Passenger Profiling, and EPIC: Air Travel Privacy. (Feb. 10, 2014)
- Government Audit Finds TSA's Behavioral Analysis Program "Ineffective": The Government Accountability Office issued a report to Congress finding that the Transportation Security Administration's behavioral analysis program, known as "Screening of Passengers by Observation Techniques" (SPOT), is ineffective. The GAO determined that there is no scientifically valid evidence for behavior indicators, and that TSA screeners cannot reliably interpret passenger behavior. The GAO report also notes that the there have been significant concerns over racial and ethnic profiling. There are around 3,000 TSA officers currently assigned to the SPOT program, which has cost approximately $900 million since 2007. The GAO recommended the Congress reduce further funding of the program. In testimony before the 9/11 Commission in 2003, EPIC warned that "It is easy to construct a device that can determine whether a person is carrying a gun before he boards an airplane. It is much more difficult to construct a device that can probe his thoughts and determine his intent to commit a crime." Since that time, EPIC has objected to the DHS's practice of assigning threat profiles based on race, ethnicity, and gender. EPIC has also called upon the TSA to undertake a comprehensive audit of the civil rights impact of airport screening policies on racial and religious minorities. For more information, see EPIC: Passenger Profiling. (Nov. 14, 2013)
- EPIC Objects to Secret Profiling of Air Travelers: EPIC has submitted comments to the Department of Homeland Security, objecting to the agency's plan to secretly profile U.S. air travelers and remove Privacy Act safeguards. The DHS proposed to exempt TSA PreCheck from the federal privacy law. The PreCheck database contains detailed personal information, including name, birthdate, biometric information, Social Security Number, and financial information. The TSA plans to release applicant data to federal, state, tribal, local, territorial agencies and foreign governments. However, the TSA proposes to remove the rights of PreCheck applications concerning notification, access, and correction. The agency also intends to keep secret the basis for approving PreCheck applicants. EPIC described the substantial privacy and security risks of Precheck, urged the DHS to narrow the Privacy Act exemptions, and recommended that the DHS withdraw routine use disclosures. For more information, see EPIC: Secure Flight, EPIC: Passenger Profiling, and EPIC: Air Travel Privacy. (Oct. 10, 2013)
- EPIC v. DHS decision
- Federal Aviation Administration 2012 Act (requires TSA use generic image filters on individuals that go through nude body scanners)
- TSA Proposed Nude Body Scanner Rule
- Chicago Tribune: Speak Out Now on the TSA's Full-Body Scanners (Apr. 23, 2013)
- The Verge: Now is Your Chance to Tell the TSA What You Think of ‘Nude’ Full-Body Scanners (Apr. 21, 2013)
- Washington Post: The Navigator: Speak Out Now on Full-Body Scanners (Apr. 18, 2013)
- New York Times: Trying Passenger Patience (Apr. 15, 2013)
- Nextgov: TSA to Heed Formal Gripes Over Body Scans (Mar. 25, 2013)
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Communications Law and Policy
Jerry Kang and Alan Butler