EPIC v. DHS (Suspension of Body Scanner Program)

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Introduction

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.

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Background

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.

EPIC's Lawsuit

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.

Procedural History

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.

Litigation Documents

EPIC v. the Department of Homeland Security, Case No. 10-1157 (D.C. Cir. filed July 2, 2010).

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