EPIC v. DHS (Suspension of Body Scanner Program)
In 2011 EPIC obtained a court order requiring the Department of Homeland Security to undertake a public notice on and comment rulemaking on the use of bodyscanners in U.S. airports. EPIC petitioned the U.S. Court of Appeals for the D.C. Circuit to suspend the body scanner program after the agency refused to take public comments, stressing that "the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers." EPIC argued that the controversial program violated the Administrative Procedure Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment. The D.C. Circuit ruled in July 2011, agreeing that the agency violated the APA when it used bodyscanners as a primary screening method without completing the notice and comment process. The Court ordered the agency to "promptly" undertake notice and comment rulemaking, allowing the public to comment on the body scanner program.
Following the Court's order in 2011, the TSA did not "act promptly" to accept public comments and conduct rulemaking. EPIC filed a Petition for Mandamus with the D.C. Circuit, asking the court to order the agency to comply with the order. The court subsequently responded to EPIC's petition, noting that it expected the agency to begin the rulemaking process before the end of March 2013. The TSA issued a Notice of Proposed Rulemaking, initiating the comment process, at the end of March 2013. EPIC then filed extensive comments opposing the TSA's decision to deploy body scanners in US airports. The agency has not issued a final rule. More recently, the DHS published a change to the airport scanning procedure that claims the authority deny passengers the ability to opt-out of the bodyscanners.
- EPIC, Coalition Call for Congressional Hearings on Unlawful TSA Mandate for Body Scanners: EPIC and 25 organizations have urged Congress to hold a hearing on TSA's decision to end the opt-out for airport body scanners. Dozens of organizations petitioned the DHS secretary in 2010 to solicit public comments on the original program. In EPIC v. DHS the lawsuit that followed, the D.C. Circuit ruled that TSA violated federal law when it installed body scanners in airports without public comment. The agency said at the time that the body scanner program was optional. The Court also concluded because "any passenger may opt-out of AIT screening in favor of a patdown" there was no violation of the Fourth Amendment. (Jan. 13, 2016)
- Ignoring Federal Law, TSA Drops Opt-Out Option for Body Scanners: The TSA has used a "Privacy Impact Assessment Update" to announce an unlawful procedure for screening air travelers in the United States. The agency claims that it may "mandate body scanner screening for some passengers." In EPIC v. DHS (Suspension of Body Scanner Program, the D.C. Circuit Court of Appeals ruled that the screening was Constitutional because passengers could always opt out. As Judge Ginsburg explained, "any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive. "The TSA has also failed to "act promptly," as the Court mandated, to finalize the legal authority for the program. (Dec. 19, 2015) More top news »
In 2005, the Transportation Security Administration ("TSA), a component of the US 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 whole body scanners as the equivalent of "a physically invasive strip-search." The agency operates the body scanner devices 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 that the body scanners are effectively mandatory, because the agency routinely denies 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 recently established body scanners as primary screening.
On July 2, 2010, EPIC sued in the District of Columbia Circuit Court of Appeals to challenge 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 Court of Appeals 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 federal agency opposed the 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 TSA "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 Department of Homeland Security moved to exclude religious objector Nadhira Al-Khalili from the lawsuit. Ms. Al-Khalili is Legal Counsel for the Council on American Islamic Relations, one of the organizations that supported EPIC's petition, which is the basis for the challenge to the body scanner program. Ms. Al-Khalili's claims are 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, Respondent DHS filed its 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 has previously argued that the body scanner program is "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. Oral Argument in the case is scheduled for March 10, 2011.
EPIC's Legal Arguments
In EPIC v. DHS, No. 10-1157, Petitioners argued that DHS violated the Administrative Procedure Act when it failed to act on EPIC's May 31, 2009 petition to the agency and when it refused to process of EPIC’s April 21, 2010 petition. The Administrative Procedure Act states that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Courts have found that petitioning parties are entitled to a response on the merits.
EPIC also argued that the DHS Privacy Office failed to comply with its statutory mandate to protect travelers’ privacy. The DHS Chief Privacy Office prepared an inadequate Privacy Impact Assessment of the TSA’s body scanner test program that failed to identify numerous privacy risks to air travelers. Also, the DHS Chief Privacy Office failed to prepare any Privacy Impact Assessment concerning the TSA’s current body scanner program. The TSA’s current body scanner program is materially different from the TSA’s body scanner test program. The program erodes, and does not sustain, privacy protections relating to the use, collection, and disclosure of air traveler’s personal information.
EPIC asserted that the body scanner program violates travelers' Fourth Amendment rights. Courts have required that airport security searches be minimally intrusive, well-tailored to protect personal privacy, and neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. Searches are reasonable if they escalate in invasiveness only after a lower level of screening discloses a reason to conduct a more probing search. EPIC argues that the TSA’s body scanner program fails to meet these standards because the TSA subjects all air travelers to the most extensive, invasive search available at the outset. EPIC asserts that the TSA searches are also far more invasive than necessary to detect weapons. Alternative technologies, including passive millimeter wave scanners and automated threat detection, detect weapons with a less invasive search.
EPIC argued that the TSA’s body scanner program violates the Privacy Act because it creates a system of records containing air travelers’ personally identifiable information. The system of records is under the control of the TSA, and the TSA can retrieve information about air travelers by name or by some identifying number, symbol, or other identifying particular assigned to the individual. However, EPIC argued, the TSA failed to publish a “system of records notice” in the Federal Register, and otherwise failed to comply with its Privacy Act obligations.
EPIC asserted that the TSA’s body scanner program violates the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person's exercise of religion even if the burden arises from a rule of general applicability unless the government demonstrates a compelling governmental interest, and uses the least restrictive means of furthering that interest. The TSA's use of body scanners violates the RFRA because the capture and transmission of naked images of individuals offends the sincerely held beliefs of Muslims and other religious groups. Muslims believe in maintaining modesty and covering their bodies. Body scanners enable the capture and viewing of naked human images that violates this belief and denies observant Muslims the opportunity to travel by plane in the United States as others are able to do.
Lastly, EPIC argued that the TSA's body scanners violate the Video Voyeurism Prevention Act of 2004, which specifically prohibits the intentional “capture [of] an image of a private area of an individual without their consent . . . under circumstances in which the individual has a reasonable expectation of privacy,” when such circumstances are known. As the documents that EPIC obtained through FOIA litigation demonstrate, the devices are specifically designed to capture such images. Furthermore, as evidenced by the ground swell of grassroots opposition, the public is clearly voicing a reasonable expectation of privacy.
On July 15, 2011, the D.C. Circuit ruled that the TSA did, in fact, violate the Administrative Procedure Act when it failed to conduct a public notice and comment rulemaking. The Court ordered the agency to "promptly" undertake a public notice and comment rulemaking.
Because the agency failed to initiate the required notice and comment rulemaking, EPIC twice filed motions asking the Court to enforce it's own order - the first on October 28, 2011 and the second on December 23, 2011. The Court declined these motions. But after a year of agency inaction, on July 17, 2012, EPIC filed a Petition for Writ of Mandamus, asking the Court to enforce its own order and force the agency to initiate the notice and comment rulemaking process within sixty days.
In its Petition for Writ of Mandamus, EPIC cited D.C. Circuit caselaw that shows that a one year delay is unreasonable as a matter of law. EPIC also urged the Court to take into consideration the health risks presented by the machines, which weigh heavily in favor of a transparency rulemaking process which would allow for independent review and democratic process.
The D.C. Circuit responded to EPIC's petition in September 2012, noting that it expected the agency to begin the rulemaking process before the end of March 2013. The TSA issued a Notice of Proposed Rulemaking, initiating the comment process, at the end of March 2013. EPIC then filed extensive comments opposing the TSA's decision to deploy body scanners in US airports. The agency has not issued a final rule. More recently, the DHS published a change to the airport scanning procedure that claims the authority deny passengers the ability to opt-out of the bodyscanners.
EPIC v. the Department of Homeland Security, Case No. 10-1157 (D.C. Cir. filed July 2, 2010).
- EPIC's Opening Brief
- EPIC's Motion for Emergency Stay(pdf)
- EPIC's Petition for Review(pdf)
- Exhibit 1: EPIC: Petition to the DHS Regarding Body Scanners, May 31, 2009
- Exhibit 2: TSA: Letter to EPIC, June 19, 2009
- Exhibit 3: EPIC: Petition to DHS Regarding Body Scanners, April 21, 2010
- Exhibit 4: TSA: Letter to EPIC, May 28, 2010
- Declaration of Petitioner Bruce Schneier
- Department of Homeland Security's Opposition to EPIC's Emergency Motion(pdf)
- Exhibit 1: Privacy Impact Assessment, January 2, 2008
- Exhibit 2: Privacy Impact Assessment, July 23, 2009
- Exhibit 3: Privacy Impact Assessment, August 17, 2008
- Exhibit 4: Backscatter Sign
- Exhibit 5: Millimeter Wave Sign
- EPIC's Reply(pdf)
- Exhibit 1: Image from Body Scanner Machine
- Exhibit 2: USA Today: Backlash Grows Against Full Body Scanners in Airports
- Exhibit 3: TSA Operational Requirements
- Exhibit 4: TSA: Procurement Specifications
- 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
- D.C.Circuit Court of Appeals Ruling
- 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
- 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.
- Sen. Rand Paul Introduces Air Travelers’ “Bill of Rights”, Richard Simon, L.A. Times, June 19, 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.
- Homeland Security Concedes Airport Body Scanner ‘Vulnerabilities’, David Kravets, Wired, May 7, 2012.
- GOP Report: TSA Hasn’t Improved Aviation Security, Ashley Halsey III, Washington Post, November 16, 2011.
- Airport Body Scanners Were Improperly Adopted by U.S., Appeals Court Rules, Tom Schoenberg and Puneet Kollipara, Bloomberg News, July 15, 2011.
- Airport Body Scans Can Continue While U.S. Seeks Comments, Tom Schoenberg and Puneet Kollipara, BusinessWeek, July 15, 2011.
- Federal Court OKs Controversial Full Body Scans, Orders Public Review, Mike M. Ahlers, CNN, 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
- Are TSA Tactics Constitutional? An Advocacy Group Sues to Find Out, Howard Portnoy, Hot Air, November 29, 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.
- Protest Over Airport Body Scanners, Press Association, November 21, 2010.
- Obama Says Understands Ire Over Airport Screenings, Julie Pace, Associated Press, November 20, 2010.
- Ron Paul Introduces the American Traveler Dignity Act, E. D. Kain, Washington Examiner, November 19, 2010.
- Incoming Speaker Takes Commercial Flight, but Skips the Pat Down, Jeff Zeleny, New York Times, November 19, 2010.
- Lawmakers Jump Late into Airport-Scanner Uproar, Carol Pucci, Seattle Times, November 19, 2010.
- New York Lawmakers Try to Ban Body Scanners From Airports, Amar Toor, Switched, November 19, 2010.
- TSA Pat-Downs 'Overly Intrusive,' Key Lawmakers Say, Alan Levin, USA Today, 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.
- Body Scanners, Pat-Downs Violate Law and Privacy, Marc Rotenberg, CNN, November 17, 2010.
- Napolitano 'Open' to Fliers' Gripes Over Screening, Charisse Jones, USA Today, November 17, 2010.
- TSA Backlash Grows Over Leaked Body Scans, Many Other Scandals, Max Fisher, The Atlantic, November 16, 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.
- Feds Admit They Stored Body Scanner Images, Despite TSA Claim the Images Cannot be Saved, Aliyah Shahid, New York Daily News, August 4, 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.
- Feds Admit Storing Body Scan Images, Declan McCullagh, CNET, 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.
- Civil Rights Coalition: TSA Violates Travelers' Rights, Amy E. Ferrer, Bill of Rights Defense Committee Blog, July 6, 2010.
- Full-body security scanners scrapped at Dubai airports, officials say the device "contradicts Islam", Aliah Shahid, New York Daily News, July 6, 2010.
- Sikh concerns delay hand search plans at UK airports, Dil Neiyyar, BBC News, June 30, 2010.
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