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)