EPIC has challenged the use of airport body scanners since they were first tested and introduced by the TSA in the mid 2000s. First, EPIC sued to obtain records outlining the invasive screening capabilities, potential health risks, and traveler complaints logged by the TSA. Then, in 2011, EPIC successfully sued to require the Department of Homeland Security to undertake a public notice on and comment rulemaking on the use of body scanners in U.S. airports. EPIC argued that “the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers” and the D.C. Circuit agreed. The court ordered the agency to “promptly” undertake notice and comment rulemaking, allowing the public to comment on the body scanner program.
The TSA issued a Notice of Proposed Rulemaking in March 2013. EPIC then filed extensive comments opposing the TSA’s proposed body scanner rule. The agency subsequently issued a notice modifying the airport scanning procedures that claims the authority deny passengers the ability to opt-out of the bodyscanners. Then, in March 2016, the TSA issued the final body scanner rule. EPIC filed suit in May 2016, challenging the final rule. The D.C. Circuit will hear oral arguments in the case, EPIC v. TSA, No. 16-1139, on April 7, 2017.
In 2005, the Transportation Security Administration (TSA), a component of the U.S. Department of Homeland Security (DHS), began testing passenger imaging technology–called “whole body imaging,” “body scanners,” “full body scanners,” and “advanced imaging technology”–to screen air travelers. Body scanners produce detailed, three-dimensional images of individuals. Security experts have described body scanners as the equivalent of “a physically invasive strip-search.” The agency uses body scanners for primary passenger screening at airports throughout the United States.
As part of a Freedom of Information Act lawsuit, EPIC obtained documents which establish that the TSA required the machines to be capable of storing, recording, and transferring detailed images of naked air travelers. EPIC also obtained hundreds of pages of traveler complaints, which described the invasive program and the lack of proper signage and information regarding the machines. The complaints establish the agency had been denying air travelers alternative screening opportunities.
The images captured by body scanner devices can uniquely identify individual air travelers. The TSA uses body scanners to search air travelers as they pass through the TSA’s airport security checkpoints. The TSA began using body scanners for primary screening in 2009.
On July 2, 2010, EPIC sued in the U.S. Court of Appeals for the District of Columbia Circuit, challenging the TSA’s unilateral decision to make body scanners the primary screening technique in U.S. airports. Three frequent air travelers joined EPIC in the lawsuit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations Legal Counsel Nadhira Al-Khalili. The Petitioners brought claims under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment. EPIC sought the suspension of the body scanner program, pending independent review and public notice and comment rulemaking.
EPIC petitioned the D.C. Circuit for review of three DHS actions: one failure to act, one agency Order, and one agency Rule of the TSA, a DHS component. The Petitioners filed a motion for emergency stay, urging the Court to shut down the program as soon as possible in order to prevent irreparable harm to American travelers. On July 15, 2010, the DHS filed a brief in opposition to EPIC’s motion. On July 20, 2010, EPIC filed a reply to the opposition. On September 1, 2010, the Court ordered the motion be denied, and set out the briefing schedule.
On November 1, 2010, EPIC filed its opening brief, arguing that the DHS “has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history.” EPIC further argued that the agency “must comply with relevant law, and it must not be permitted to engage in such a fundamental change in agency practice without providing the public the opportunity to express its views.”
On November 5, 2010, the DHS moved to exclude religious objector Nadhira Al-Khalili from the lawsuit. Ms. Al-Khalili was Legal Counsel for the Council on American Islamic Relations, one of the organizations that supported EPIC’s petition, which was the basis for the challenge to the body scanner program. Ms. Al-Khalili’s claims were based on the Religious Freedom Restoration Act and Islamic modesty requirements. EPIC opposed the government’s motion and stated that the agency is “simply afraid to have the Religious Freedom Restoration Act claims heard by this Court.” EPIC further argued that “Respondents hope by seeking to exclude Ms. Al- Khalili . . . they will avoid judicial scrutiny of an agency practice that substantially burdens the free exercise of religion in violation of federal law.”
On December 23, 2010, DHS filed an answer brief, again urging the Court to exclude Nadhira al-Khalili as a religious objector in the suit. Respondents also asserted that the body scanner program was not substantial enough of a change in agency policy to constitute a “rule” under the Administrative Procedures Act. EPIC previously argued that the body scanner program was “the single most significant change in air traveler screening in the United States since the creation of the agency,” adding that the agency has considered far less significant changes to be rules, including policies relating to butane lighters and transportation worker identity documents.
On January 6, 2011, EPIC filed a reply brief, arguing that “the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers, the agency’s rule should be set aside and further deployment of the body scanners should be suspended.” On the same day, EPIC hosted a one-day public conference “The Stripping of Freedom: A Careful Scan of TSA Security Procedures” in Washington, DC.
The D.C. Circuit held oral argument in the case was held on March 10, 2011. The court issued its opinion on July 15, 2011, ruling for EPIC on the APA claim and ordering the agency to promptly conduct notice-and-comment rulemaking.
On May 2, 2016, EPIC filed a petition for review of the TSA’s final body scanner rule: 81 Fed. Reg. 11,364 (Mar. 3, 2016). The case was consolidated with another petition filed by the Competitive Enterprise Institute. The agency initially filed a motion for leave to file portions of the administrative record ex parte and under seal, which EPIC opposed in part. EPIC and CEI filed initial briefs at the end of September 2016. A group of civil rights organizations filed an amicus brief in support of EPIC and CEI in October 2016. The Government filed its respondent brief in November 2016, and EPIC filed the reply brief in December 2016. The D.C. Circuit scheduled oral argument for April 7, 2017. Legal documents are available here.
EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011) (Case No. 10-1157 filed July 2, 2010)
- D.C. Circuit Opinion, EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011)
- EPIC’s Opening Brief
- EPIC’s Motion for Emergency Stay(pdf)
- EPIC’s Petition for Review(pdf)
- Department of Homeland Security’s Opposition to EPIC’s Emergency Motion(pdf)
- EPIC’s Reply(pdf)
- DHS’s Motion to Exclude Religious Objector Nadhira Al-Khalili As a Party
- EPIC’s Opposition to Department’s Motion to Exclude
- EPIC’s Reply Brief
- DHS’s Opposition Brief
- EPIC’s Motion to Enforce the Court’s Mandate
- Department of Homeland Security’s Opposition to EPIC’s Motion to Enforce
- DC Circuit Per Curiam Order Denying EPIC’s Motion to Enforce
- EPIC’s Second Motion to Enforce the Court’s Mandate
- DHS’ Opposition to EPIC’s Second Motion to Enforce
- EPIC’s Petition for Writ of Mandamus
- Amicus Brief by the Competitive Enterprise Institute, et. al.
- DC Circuit Mandamus Briefing Order
- DHS’ Response in Opposition to EPIC’s Petition
- Declaration of John P. Sammon in Support of DHS’ Response
- EPIC’s Reply to DHS’ Response in Opposition to EPIC’s Petition
- DC Circuit Mandamus Order
- Judgment and Memorandum Opinion (May. 26, 2017)
- EPIC Opening Brief (Sept. 26, 2016)
- CEI Opening Brief (Sept. 26, 2016)
- Freedom to Travel USA Amicus Brief (Oct. 3, 2016)
- TSA Respondent Brief (Nov. 21, 2016)
- CEI Reply Brief (Dec. 13, 2017)
- EPIC Reply Brief (Dec. 14, 2017)
- Other Documents
- Supplemental Appendix (Mar. 27, 2017)
- Joint Appendix (Dec. 15, 2016)
- Per Curiam Order re: TSA Motion to Seal (Nov. 9, 2016)
- TSA Reply in Support of Motion to File Ex Parte (Oct. 7, 2016)
- EPIC’s Opposition to the TSA’s Motion to File Ex Parte (Oct. 3, 2016)
- TSA Motion to File Portions of the Administrative Record Under Seal and Portions Ex Parte and Under Seal (Sept. 19, 2016)
- Clerk’s Order re: Initial Submissions (May 6, 2016)
- Petition for Review (May 2, 2016)
Passenger Screening Using Advanced Imaging Technology, TSA Docket No. 2013-0004
- Final Rule, 81 Fed. Reg. 11,364 (March 3, 2016)
- Final Rule, Regulatory Impact Analysis
- Final Rule, Footnotes (Part 1 of 2)
- Final Rule, Footnotes (Part 2 of 2)
- Notice of Proposed Rulemaking, 78 Fed. Reg. 18,287 (March 26, 2013)
Body Scanner Resources
- EPIC: Whole Body Imaging Technology (Body Scanners)
- Spotlight on Surveillance, Body Scanners
- EPIC v. DHS (FOIA, Body Scanners)
- EPIC: Comments on TSA Body Scanner Program
- What the TSA’s New Body-scanner Rules Mean For You, Washington Post (Dec. 31, 2015)
- TSA Challenges Body Scan Lawsuit, Forbes (Dec. 29, 2015)
- TSA Fails to Comply With Year-Old ‘Nude’ Body-Scanner Court Order, David Kravets, July 16, 2012.
- Editorial: TSA Defies the Courts, The Washington Times, July 18, 2012.
- One Year Later and No Hearings on Body Scanners, Maryam K. Ansari, Esq., FindLaw, July 18, 2012.
- TSA’s New Scanner Technology Questioned, Jessica Meyers, Politico, June 19, 2012.
- TSA Full-body Scanners at Airports Pose Little Risk, Study Finds, Hugo Martin, L.A. Times, June 10, 2012.
- GOP Report: TSA Hasn’t Improved Aviation Security, Ashley Halsey III, Washington Post, November 16, 2011.
- Airport Body Scans Can Continue While U.S. Seeks Comments, Tom Schoenberg and Puneet Kollipara, BusinessWeek, July 15, 2011.
- TSA Admits Bungling of Airport Body-Scanner Radiation Tests, David Kravets, Wired, March 15, 2011.
- Homeland Security Looked Into Covert Body Scans, Thomas Frank, USA Today, March 4, 2011.
- DHS Denies Plans for Expanded Use of Body Scanners, Jaikumar Vijayan, Computerworld, March 3, 2011.
- Harvard Students Challenge TSA, Katie Johnston Chase, Boston.com, December 2, 2010
- The TSA Is Invasive, Annoying, and Unconstitutional, Jeffrey Rosen, Washington Post, November 28, 2010.
- Administration to Seek Balance in Airport Screening, Scott Shane, New York Times, November 21, 2010.
- Incoming Speaker Takes Commercial Flight, but Skips the Pat Down, Jeff Zeleny, New York Times, November 19, 2010.
- Pilots to be Exempt from Airport Scanners, Intrusive Pat-Downs, Brad Knickerbocker, Christian Science Monitor, November 19, 2010.
- Pat-Downs at Airports Prompt Complaints, Susan Stellin, New York Times, November 18, 2010.
- Nader: TSA is Delivering Naked Insecurity, Ralph Nader, USA Today, November 18, 2010.
- U.S. Must Improve Traveler Privacy After Pat-Down Backlash, Lawmaker Says, John Hughes, Bloomberg News, November 17, 2010.
- ‘Sully’ Joins Opposition to Heightened Airport Security Measures, CNN, November 17, 2010.
- Screening Protests Grow as Holiday Crunch Looms, Joe Sharkey, New York Times, November 15, 2010.
- Oceanside Man Challenges Airport’s Full-Body Scan, Los Angeles Times, November 15, 2010.
- Growing Backlash Against TSA Body Scanners, Pat-Downs, Phil Gast, CNN, November 14, 2010.
- ‘Invasive’ Airport Screening Stirs Backlash Among Airline Passengers, Stephen Clark, Fox News, November 12, 2010.
- Ralph Nader and EPIC Take On Full-Body Airport Scanners, Neal Ungerleider, Fast Company, November 8, 2010.
- Airline Pilots Boycott Full Body Scanners, Sara Yin, PC Magazine, November 8, 2010.
- Group Slams Airport Naked Body Scanners, Dan Goodin, The Register, November 3, 2010.
- Group Demands Immediate Halt of Full-Body Airport Scanners, David Kravits, Wired, November 2, 2010.
- New Uproar Over Security Scanners After Agency Acknowledges Storing Images, Mary Forgione, Los Angeles Times, August 9, 2010.
- Group Concerned Airport Security Scanners Capture Nearly Naked Images, NBC, August 5, 2010.
- Lawsuit Challenges Airport Full-Body Scanners, Katie Johnston Chase, The Boston Globe, August 4, 2010.
- Body Scan Images From Security Checkpoints Were Saved By Feds, Bianca Bosker, Huffington Post, August 4. 2010.
- EPIC Files Suit Against the Deployment of Full Body Scanners in US Airports, Yosie Saint-Cyr, Slaw (Blog), July 15, 2010.
- EPIC Files Lawsuit Against Airport Body Scanners, Growing Consumer Backlash, Consumer Federation of America, July 13, 2010.
- Backlash grows against full-body scanners in airports, Gary Stoller, USA Today, July 13, 2010.
- Privacy Group Files Lawsuit to Block Airport Body Scanners, Roger Yu, USA Today, July 9, 2010.
- Sikh concerns delay hand search plans at UK airports, Dil Neiyyar, BBC News, June 30, 2010.