EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit)
US District Court for the District of Columbia
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)
Freedom of Information Act Documents
EPIC’s November 24, 2010 Request for Agency Records under the Freedom of Information Act
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 ContractsNortheastern 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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