EPIC v. Department of Homeland Security - Full Body Scanner Radiation Risks
- EPIC Appeals FOIA Decisions Concerning Body Scanner Information: EPIC has filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanners from the Department of Homeland Security and the Transportation Security Administration. EPIC filed FOIA requests with the agencies seeking records related to radiation risks from body scanners and the threat detection software the machines use. The TSA is currently developing formal rules for the use of body scanners in response to a court order in one of EPIC's previous cases. Body scanners allow routine digital strip searches of individuals who are not suspected of any crime. For more information, see EPIC: Radiation Risks lawsuit and EPIC: ATR lawsuit, and EPIC: Suspension of Body Scanner Program. (Apr. 16, 2013)
- National Academy of Sciences to Undertake Independent Assessment of Airport Body Scanners: After years of pressure from political leaders, civil liberties and health advocates, including EPIC, there will be an independent review of the health risks posed by backscatter x-ray devices. A National Academy of Sciences committee will assess “whether exposures comply with applicable health and safety standards” for passengers and airport employees. The study is limited to radiation and safety testing, and will not examine the privacy implications or effectiveness of the x-ray machines. In 2012, both the House and the Senate introduced legislation calling for an independent assessment of the controversial devices. Europe has also effectively banned the use of backscatter X-ray devices. EPIC has a FOIA lawsuit against DHS concerning body scanner radiation risks. In response to another EPIC lawsuit, the agency will begin a public comment process on the airport screening program in March 2013. For more information see: EPIC: Whole Body Imaging Technology and Body Scanners. (Dec. 19, 2012)
- House and Senate Call for Investigation on Airport Body Scanner Radiation Risks: Both the House and the Senate introduced bills last month that would require the Department of Homeland Security "to contract with an independent laboratory to study the health effects of backscatter x-ray machines used at airline checkpoints operated by the Transportation Security Administration," and to provide improved notice of the health effects to airline passengers. The bills focus on the health effects of those screened by the backscatter x-ray machines, including frequent air travelers, flight crews, and individuals with greater sensitivity to radiation, such as children, pregnant women, the elderly, and cancer patients. In 2010, EPIC filed a Freedom of Information Act lawsuit asking a court to force the Department of Homeland Security to disclose documents about radiation testing results and agency fact sheets on radiation risks. For more information, see EPIC: EPIC v. DHS - Full Body Scanner Radiation Risks. (Mar. 15, 2012)
- EPIC Publishes 2012 FOIA Gallery: In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2012. The gallery highlights key documents obtained by EPIC in the past year, including the Federal Bureau of Investigation's watch list guidelines, records of the Department of Homeland Security's social media monitoring program, Google's first Privacy Compliance Report, records detailing the government's FAST scanning program, records of the FBI's surveillance of Wikileaks supporters, and DHS records detailing the use of body scanners at the U.S. border. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA. (Mar. 12, 2012)
- PBS Special Highlights Risks of Airport Body Scanners: A PBS Newshour special highlights the radiation risks and security flaws of airport body scanners. The program follows EPIC's Freedom of Information Act lawsuits against the Department of Homeland Security. EPIC's suits forced disclosure of documents detailing the health risks and privacy hazards posed by the scanners as well as the proposed use of the scanners on public streets and in train stations. EPIC also sued the agency, asking the DC Circuit Court of Appeals to suspend the airport body scanner program. The court ruled that the TSA violated federal law when it installed body scanners in airports for primary screening across the country without first soliciting public comment. The European Union recently adopted strict guidelines that effectively prohibit the use of backscatter x-ray body scanners. For more, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology (Dec. 1, 2011)
- EPIC Asks Court to Require DHS Disclosure of Documents Detailing Body Scanner Radiation Risks: EPIC has filed a motion for summary judgment in EPIC v. DHS, No. 1:11-cv-01991-ABJ, a pending Freedom of Information Act lawsuit against the Department of Homeland Security for information about the radiation risks posed by body scanners. EPIC has asked the court to force the agency to disclose documents containing radiation testing results, agency fact sheets on body scanner radiation risks, and an image produced by the machines. A new report from ProPublica states that the "U.S. Government Glossed Over Cancer Concerns As It Rolled Out Airport X-Ray." EPIC has already obtained hundreds of pages of documents detailing the radiation risks presented by the machines. For more information, see EPIC: Body Scanners and Radiation Risks (FOIA). (Nov. 1, 2011)
- EPIC v. DHS Lawsuit -- FOIA'd Documents Raise New Questions About Body Scanner Radiation Risks : In a FOIA lawsuit against the Department of Homeland Security, EPIC has just obtained documents concerning the radiation risks of TSA's airport body scanner program. The documents include agency emails, radiation studies, memoranda of agreement concerning radiation testing programs, and results of some radiation tests. One document set reveals that even after TSA employees identified cancer clusters possibly linked to radiation exposure, the agency failed to issue employees dosimeters - safety devices that could assess the level of radiation exposure. Another document indicates that the DHS mischaracterized the findings of the National Institute of Standards and Technology, stating that NIST "affirmed the safety" of full body scanners. The documents obtained by EPIC reveal that NIST disputed that characterization and stated that the Institute did not, in fact, test the devices. Also, a Johns Hopkins University study revealed that radiation zones around body scanners could exceed the "General Public Dose Limit." For more information, see EPIC: EPIC v. Department of Homeland Security - Full Body Scanner Radiation Risks and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Jun. 24, 2011)
- EPIC Files FOIA Suit to Force Disclosure of Body Scanner Radiation Risks: EPIC has filed a Freedom of Information Act lawsuit against the Department of Homeland Security, seeking records concerning radiation emissions and exposure associated with airport full body scanners. The Department recently implemented the scanners as a primary screening mechanism for all airline travelers. In August, many senators questioned the safety of the scanners. In September, Ralph Nader also sent a letter to the Senate expressing concern about radiation exposure. Earlier this year, EPIC requested DHS to release all information about radiation emissions. DHS failed to respond to EPIC's FOIA request and when DHS also failed to reply to EPIC's administrative appeal, EPIC filed a lawsuit in federal court. Earlier EPIC FOIA lawsuits uncovered evidence that body scanners can store and record images and that the Marshals Service had captured more than 35,000 images. For more information see, EPIC v. DHS (Body scanner images) and EPIC v. DOJ (Body scanner images). (Nov. 19, 2010)
- EPIC Presses for Release of Government Documents on Health Risks of Airport Body Scanners: EPIC has filed an appeal with the Transportation Security Administration, challenging the agency's denial of expedited processing and fee waivers for an EPIC Freedom of Information Act request. EPIC's is seeking documents from the TSA concerning full body scanner radiation risks and testing. EPIC challenged the TSA's denial of expedited processing, arguing that by delaying to release of the records, the agency was risking the health of travelers and its own employees. EPIC also argued that the record request was particularly timely, as three US Senators recently wrote to the Department of Homeland Security about the safety of the airport body scanners and the risk to air travelers. Separately, EPIC has urged a federal court to suspend the program, pending an independent review of the health risks and privacy impact. For more information, see EPIC: Body Scanners and EPIC v. DHS (suspension of program). (Aug. 30, 2010)
In EPIC v. Department of Homeland Security, Case No. 10-01992(EBJ) (D.D.C. filed Nov. 19, 2010), EPIC has sought the release of documents regarding radiation risks posed by airport full body scanners.
In February 2007, the Transportation Security Administration, a component of the US Department of Homeland Security, began testing full body scanners - also called “whole body imaging,” and "advanced imaging technology" - to screen air travelers. Full body scanners produce detailed, three-dimensional images of individuals. Security experts have described full body scanners as the equivalent of "a physically invasive strip-search."
TSA is using full body scanner systems at airport security checkpoints, screening passengers before they board flights.The agency provided various assurances regarding its use of full body scanners. TSA stated that full body scanners would not be mandatory for passengers and that images produced by the machines would not be stored, transmitted, or printed. A previous EPIC FOIA lawsuit against DHS revealed that TSA’s body scanner images can be stored and transmitted.
On February 18, 2009, TSA announced that it would require passengers at six airports to submit to full body scanners in place of the standard metal detector search, which contravenes its earlier statements that full body scanners would not be mandatory. On April 6, 2009, TSA announced its plans to expand the mandatory use of full body scanners to all airports.
On June 4, 2009, the U.S. House of Representatives passed HR 2200, a bill that would limit the use of whole body imaging systems in airports. The bill prevents use of whole body imaging technology for primary screening purposes. HR 2200 was referred to the Senate for consideration on June 8, 2009. The legislation was referred to the Senate Committee on Commerce, Science, and Transportation. TSA renewed its call for mandatory body scans for all air travelers in the wake of the attempted bombing of Northwest Flight 253, which traveled from Amsterdam to Detroit on December 25, 2009.
Since June 2009, the TSA has installed hundreds of additional full body scanners in American airports. On July 2, 2010, EPIC filed suit in the U.S. Court of Appeals for the D.C. Circuit to suspend the TSA’s full body scanner program.
Experts have questioned the safety of full body scanners and noted that radiation exposure from devices like full body scanner increases individuals’ cancer risk. No independent study has been conducted on the health risks of full body scanners.
In April 2010, scientists at the University of California - San Francisco wrote to President Obama, calling for an independent review of the full body scanners’ radiation risks. The experts noted that children, pregnant women, and the elderly are especially at risk “from the mutagenic effects of the [body scanners’] X-rays.” Dr. David Brenner, director of Columbia University's Center for Radiological Research and a professor of radiation biophysics, has warned “it's very likely that some number of [air travelers] will develop cancer from the radiation from these scanners.” Peter Rez, a professor of physics at Arizona State University, has identified cancer risks to air travelers arising from improper maintenance and flawed operation of the TSA’s full body scanners. Other scientists and radiology experts have also identified serious health risks associated with the full body scanner program, including increased cancer risk to American travelers.
EPIC's Freedom of Information Act Requests and Subsequent Lawsuit
On July 13, 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 radiation risks posed by TSA's full body scanner program. EPIC requested the following agency records:
- All records concerning TSA tests regarding body scanners and radiation emission or exposure;
- All records concerning third party tests regarding body scanners and radiation emission or exposure.
DHS acknowledged receipt of EPIC's FOIA request, but failed to disclose any documents. On November 19, 2010, EPIC sued DHS to force disclosure of the body scanner radiation documents. The suit challenged DHS's failure to disclose public records and failure to comply with the Freedom of Information Act. On the heels of EPIC's lawsuit, DHS disclosed key documents, including test results that indicated full body scanners could be emitting more radiation than the TSA claims. DHS failed to produce all records demanded in EPIC's FOIA request. The lawsuit is ongoing.
Documents Obtained by EPIC Through Its Lawsuit
On June 24, 2011, EPIC released documents obtained from DHS as a result of EPIC's lawsuit.
The disclosed documents include agency emails, radiation studies, memoranda of agreement concerning radiation testing programs, and results of some radiation tests.
The documents raise new questions concerning the radiation risks posed by the TSA full body scanner program. The records demonstrate:
- TSA employees have identified cancer clusters allegedly linked to radiation exposure while operating body scanners and other screening technology. However, the agency failed to issue employees dosimeters - safety devices that would warn of radiation exposure.
- The DHS has publicly mischaracterized the findings of the National Institute of Standards and Technology, stating that NIST "affirmed the safety" of full body scanners. NIST stated that the Institute did not, in fact, test full body scanners for safety, and that the Institute does not do product testing.
- A Johns Hopkins University study revealed that radiation zones around body scanners could exceed the “General Public Dose Limit.”
- A NIST study warns airport screeners to avoid standing next to full body scanners.
EPIC v. the Department of Homeland Security, Case No. 10-01992(EBJ) (D.D.C. filed Nov. 19, 2010)
- EPIC's Complaint Against DHS (pdf)
- DHS Answer (pdf)
- DHS Motion for Summary Judgment (pdf)
- Ex. 1 - Declaration of Paul Sotoudeh
- Ex. 2 - Declaration of Bert Coursey
- Ex. 3 - Declaration of Pamela Beresford
- Ex. 4 - Declaration of Joy Lazaroff
- Ex. 5 - Declaration of Peter Modica
- Ex. 6 - Declaration of Scott Trosper
- Ex. 7 - Declaration of Joseph Callarame
- Ex. 8 - Declaration of Rory Doyle
- Ex. 9 - Email from John Verdi to Jesse Grauman
- EPIC Motion for Summary Judgment/Opposition (pdf)
- DHS Opposition/Reply (pdf)
- EPIC Reply (pdf)
- Memorandum Opinion (pdf)
- Court Order (pdf)
- EPIC Motion for Fees (pdf)
- DHS Fees Opposition (pdf)
- EPIC Fees Reply (pdf)
- Memorandum Opinion on Attorneys' Fees
- EPIC's July 13, 2010 Request for Agency Records under the Freedom of Information Act
- EPIC's August 30, 2010 Administrative Appeal under the Freedom of Information Act
- Records Produced by DHS to EPIC:
- Airport Body Scanner Operators Identify Cancer Clusters, Homeland Security Fails to Issue Employees Radiation Safety Devices
- NIST: We Did Not Test Body Scanners for Radiation Safety, DHS Mischaracterized Our Work - referencing Napolitano: Scanners Are Safe, Pat-Downs Discrete, USA Today, Nov. 14, 2010
- Johns Hopkins: Radiation Zones Around Body Scanners Could Exceed “General Public Dose Limit”
- Radiation Study Warns Airport Screeners to Avoid Standing Next to Body Scanners
- TSA Admits Bungling of Airport Body-Scanner Radiation Tests, David Kravets, Wired, Mar. 15, 2011.
- Airport body scanners 'could give you cancer', warns expert, Daily Mail (UK), June 30, 2010.
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Communications Law and Policy
Jerry Kang and Alan Butler