Privacy Cases

EPIC v. DHS (Suspension of Body Scanner Program)

653 F.3d 1 (DC Cir. 2011)

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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.

Background

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.

EPIC’s 2010 Lawsuit

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.

Procedural History

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.

EPIC’s 2016 Lawsuit

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)

EPIC v. TSA, Case No. 16-1139 (D.C. Cir. filed May 2, 2016)

Passenger Screening Using Advanced Imaging Technology, TSA Docket No. 2013-0004

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