EPIC v. DHS - Body Scanner FOIA Appeal

Litigating the Interpretation of the Freedom of Information Act

Top News

  • EPIC Files Lawsuit for Details About Government "Pre-crime" Program: EPIC has filed a Freedom of Information Act lawsuit about "Future Attribute Screening Technology", a "Minority Report" program that purports to identify individuals who will commit crimes in the future. EPIC filed the complaint after the DHS failed to respond to EPIC's FOIA request for information. EPIC charged that the agency uses secret algorithms to identify behavioral "abnormalities" that the agency claims indicate "mal intent." "Minority Report" is a 2002 movie with Tom Cruise about "a special police unit is able to arrest murderers before they commit their crime." (Feb. 26, 2015)
  • In EPIC v. DHS, DC Circuit Backs Agency Secrecy on "Internet Kill Switch": The federal court of appeals based in Washington, DC has ruled that the Department of Homeland Security may withhold from the public a secret procedure for shutting down cell phone service. EPIC pursued the DHS policy after government officials in San Francisco disabled cell phone service during a peaceful protest in 2011. EPIC sued DHS when the agency failed to release the criteria for network shutdowns. A federal judge ruled in EPIC's favor. On appeal, the D.C. Circuit held for the DHS but said that the agency might still be required to disclose some portions of the protocol. (Feb. 10, 2015)
  • EPIC to Argue Before DC Circuit for Release of Cell Phone Shutdown Policy: This week EPIC President Marc Rotenberg will argue EPIC v. DHS, No. 14-5013 before the US Court of Appeals for the DC Circuit. At issue is the public release of the policy - "SOP 303" - to shut down cell phone service in the United States. EPIC filed a filed a Freedom of Information Act request for the policy after government officials shut down cell phone service during a peaceful protest at BART subway stations in San Francisco. The government first contended it could not find the document, then located the document, then claimed it was exempt from disclosure. EPIC filed suit against the agency and a federal court ruled in EPIC's favor. On appeal, the government argued the decision should be reversed. EPIC responded that the decision was correct and SOP 303 should be released. The DC Circuit will hear arguments Thursday morning. For more information, see EPIC v. DHS - SOP 303. (Dec. 9, 2014)
  • Post-Snowden, Social Media Users Concerned About Access to Personal Data: According to the Pew Research Report "Public Perceptions of Privacy and Security in the Post-Snowden Era," most users of social media are very concerned about businesses and government accessing their personal data. 80% of adults "agree" or "strongly agree" that Americans should be concerned about the government's monitoring of phone calls and internet communications. 64% believe there should be more regulation of advertisers. Almost all users rank their social security number as the most sensitive piece of personal data. EPIC has asked the House Committee on Homeland Security to suspend a DHS program that is monitoring social networks and media organizations. EPIC has recommended that the FTC to establish privacy protections for online advertising. EPIC has also urged the US Congress over many years to limit the use of the Social Security Number for commercial purposes. For more information, see EPIC: Public Opinion on Privacy, EPIC: Facebook Privacy, EPIC: Social Media Monitoring, and EPIC: Social Security Numbers. (Nov. 13, 2014)
  • Department of Homeland Security Releases 2014 Privacy Report: The Department of Homeland Security released the 2014 Privacy Office Annual Report to Congress. The report describes a joint review conducted with the European Commission regarding the transfer of EU Passenger Name Records to the US. The European Commission found the redress mechanisms were lacking for passengers denied boarding. The Commission also found that DHS would often review passenger records without a legal reason. The Annual Report describes the sixth Compliance Review of the department’s social media monitoring program. The review found that the DHS began collecting GPS and geo-location of Internet users without assessing or mitigating the privacy risks. In 2012, EPIC obtained FOIA documents revealing that the Department of Homeland Security monitored social media for political dissent. For more information, see EPIC: EU-US Airline Passenger Data Disclosure and EPIC: EPIC v. DHS - media monitoring. (Oct. 2, 2014)
  • Pew Survey: Users Online Self-Censor Discussion of Government Surveillance: According to the Pew Research Report "Social Media and the 'Spiral of Silence,'" most users of social media are afraid to talk about government surveillance on Facebook, Twitter, and other social platforms. Users were more willing to share their views on government surveillance if they thought others shared the same view. Those who thought they held minority views were more likely to self-censor—an effect known as the "spiral of silence." In 2012, EPIC obtained FOIA documents revealing that the Department of Homeland Security monitored social media for political dissent. A subsequent Congressional hearing led the DHS to cancel the program. For more information, see EPIC v. DHS: Media Monitoring and EPIC: Public Opinion on Privacy. (Sep. 9, 2014)
  • Security Experts: EPIC Correct About Body Scanners-Invasive and Ineffective: The first independent analysis of backscatter x-ray body scanners corroborate the claims EPIC and others have made for several years: The scanners are invasive and ineffective. In a detailed report published in 2005, EPIC warned that the x-ray body scanners amounted to a virtual strip search and were an ineffective means of airport security. Freedom of Information Act documents later obtained by EPIC revealed that TSA could disable the body scanner's privacy settings, the nude images could be stored on the machines, and the scanners ran on a standard operating system making them vulnerable to outside security threats. EPIC and a coalition of civil liberties organizations then petitioned DHS Secretary Napolitano to suspend the program. When the DHS failed to do so, EPIC sued the agency. The D.C. Circuit Court of Appeals ruled in EPIC v. DHS that the agency must begin a public rule making. The backscatter X-ray scanners were subsequently removed from US airports. For more information, see EPIC: EPIC v. DHS (Suspension of Body Scanner Program) and EPIC: Whole Body Imaging Technology. (Aug. 22, 2014)
  • Congress Investigates Airline Privacy Practices: Senator John Rockefeller (D-WV) is currently seeking information from ten U.S. airlines concerning how airlines safeguard consumer traveler data. Senator Rockefeller has requested information regarding: (1) the type of information airlines collect; (2) airlines' data retention periods; (3) airline privacy and security safeguards governing consumer information; (4) whether consumers may access and amend their information; (5) whether airlines sell or disclose consumer information and if so, to whom do they disclose the consumer data; and (6) how airlines inform consumers about airline privacy policies governing consumer information. EPIC routinely urges the Department of Homeland Security to provide privacy protections for air travelers and end the agency's secret "risk-based" passenger profiling. For more information, see EPIC: Air Travel Privacy, EPIC: Passenger Profiling, EPIC: Secure Flight, and EPIC: EPIC v. DHS (Suspension of Body Scanner Program). (Aug. 20, 2014)
  • EPIC Defends FOIA Victory in Federal Appeals Court: EPIC has filed a brief in response to an appeal by the Department of Justice in EPIC v. DHS, concerning the government policy to disrupt cellular networks. EPIC won a major FOIA victory when a federal district court ruled that the DHS could not withhold "SOP 303," a government procedure to shut down cellular phone service. EPIC sought the policy after authorities shut down cell phone service at a peaceful protest in San Francisco. The government argued it did not need to release the document to EPIC because it was a "law enforcement technique" and because it would endanger the physical safety of an individual. The federal court rejected those arguments and ordered that the document be disclosed to EPIC, pending a decision on the appeal. For more details, see EPIC v. DHS—SOP 303. (Jul. 8, 2014)
  • Senate to Hold Homeland Security Oversight Hearing: The Senate Judiciary Committee will hold an oversight hearing for the Department of Homeland Security. Secretary Jeh Johnson will testify. EPIC has objected to many of the agency's mass surveillance practices, including the secret profiling of American air travelers, the use of drones for aerial surveillance, the amassing of information on Americans into "fusion centers", and the collection of biometric identifiers. EPIC has also warned that the DHS Chief Privacy Officer has failed to safeguard privacy, a legal obligation for that office. According to the DHS, the number of privacy complaints increased in 2013. EPIC has several Freedom of Information Act case pending against the DHS. In an earlier case, EPIC determined the DHS was monitoring social media and news organizations for criticisms of the agency. Another EPIC case led to the removal of the x-ray backscatter devices from US airports. For more information, see EPIC v. DHS - Social Media Monitoring and EPIC v. DHS (Suspension of Body Scanner Program). (Jun. 10, 2014)

Factual Background on Airport Body Scanners

In February 2007, the Transportation Security Administration ("TSA"), a component of the U.S. Department of Homeland Security ("DHS"), 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. 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. The Court ruled that the TSA can only use the body scanners so long as passengers are allowed to "opt-out" and receive another form of screening. In addition, the Court ordered the agency to issue formal regulations on the use of the devices. The TSA did not issue a proposed rule until early 2013, and subsequently solicited public comment. The comments have been overwhelmingly opposed to the body scanner program.

Health Risks from Body Scanner Radiation Unknown

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.

Automated Target Recognition ("ATR") Software

The manufacturers of body scanners have developed "Automated Target Recognition" ("ATR") software that allows TSA agents viewing the whole-body images to see only a generic human image instead of an image of a traveler's naked body. The software is actually designed to detect "anomalies" on travelers' bodies, and the TSA asserts that this will automatically detect threatening objects travelers are concealing. When an anomaly is detected somewhere on a body, that area is highlighted in red on the displayed generic image. TSA employees are directed to further screen the areas on passengers where anomalies are detected, including an enhanced pat down. If the machine does not detect any threatening objects, instead of displaying an image it will merely display a green "OK."

The TSA began testing the software in airports in February 2011, and has announced that it will be installing this software on all of its millimeter wave body scanners nationwide. Images are displayed alongside the body scanning machines, and passengers are able to view the same image as TSA employees monitoring them.

The TSA believes that ATR modifications will mitigate travelers' privacy concerns. However, it remains unclear whether body scanners using the ATR software will retain, store, or transfer the underlying raw naked images that are captured before they are analyzed and used to display a generic figure. EPIC seeks to determine how ATR software handles naked images of travelers, and how ATR software really impacts traveler privacy.

EPIC's Freedom of Information Act Requests

Body Scanner Radiation Request

On July 13, 2010, EPIC filed a Freedom of Information Act ("FOIA") request with the Department of Homeland Security ("DHS") seeking agency records related to radiation emissions from the machines used at airport security checkpoints. In particular, EPIC requested:

  1. All records concerning TSA tests regarding body scanners and radiation emission or exposure; and
  2. 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. But DHS failed to produce all records demanded in EPIC's FOIA request.

Automated Target Recognition Software Requests

In June 2010 and October 2010, EPIC also filed two FOIA requests with the Transportation Security Administration seeking other body scanner records. EPIC sought documents related to the Automated Target Recognition ("ATR") software used by the machines. ATR software analyzes the images produced by the body scanners and identifies "anomalies" that it deems to be "potential threats." If an "anomaly" is found, it triggers additional screening and invasive pat downs by TSA agents. EPIC sought documents that would illuminate how the software works so that its privacy risks could be better understood and managed. DHS Secretary Janet Napolitano previously submitted some of this information in a letter to Senator Susan Collins. In particular, EPIC first requested:

  1. All specifications provided by TSA to automated target recognition manufacturers concerning automated target recognition systems.
  2. All records concerning the capabilities, operational effectiveness, or suitability of automated target recognition systems, as described in Secretary Napolitano's letter to Senator Collins.
  3. All records provided to TSA from the Dutch government concerning automated target recognition systems deployed in Schiphol Airport, as described by Secretary Napolitano's letter to Senator Collins.
  4. All records evaluating the [body scanner] program and determining automated target recognition requirements for nationwide deployment, as described in Secretary Napolitano's letter to Senator Collins.

EPIC's second FOIA request asked for other ATR-related documents from DHS:

  1. All records provided from L3 Communications or Rapiscan in support of the submission or certification of ATR software modifications;
  2. All contracts, contract amendments, or statements of work related to the submission or certification of ATR software modifications;
  3. All information, including results, of government testing of ATR technology, as referenced by Greg Soule of the TSA in an e-mail to Bloomberg News, published September 8, 2010.

Litigation in the U.S. District Court for the District of Columbia

DHS and TSA failed to fully respond to EPIC's FOIA requests. The agencies withheld documents and, when they did release some documents, asserted exemptions in an overbroad manner.

In November 2010, EPIC filed a lawsuit in the U.S. District Court for the District of Columbia against the Department of Homeland Security, for the agency's failure to respond to EPIC's FOIA request for radiation emissions documents. In February 2011, EPIC filed a similar FOIA lawsuit in the same court against the TSA, for failure to disclose documents related to ATR software.

Judge Royce Lamberth, presiding over both lawsuits, ordered the agencies to disclose some documents to EPIC that had previously been withheld. But the Court allowed some other documents to be withheld under the "deliberative process privilege" exemption to the FOIA. This exemption states that agencies may withhold materials that are "deliberative and predecisional" in nature, so as to protect the decision-making process by allowing agency officials to speak candidly. However, entire documents cannot be withheld simply because part of them are deliberative. Rather, the non-deliberative and deliberative materials must be separated and all non-deliberative materials must be disclosed unless they are "inextricably intertwined" with deliberative materials.

The Court, finding that some of the documents contained non-deliberative factual materials, nonetheless allowed the materials to be withheld in their entiretybecause the documents containing them, as a whole, were deliberative. EPIC objected to this incorrect interpretation of established legal precedent and filed an appeal in these cases to the D.C. Circuit Court of Appeals.

Litigation in the Court of Appeals for the D.C. Circuit

On April 16, 2013, EPIC appealed these decisions to the Court of Appeals for the D.C. Circuit. EPIC presented the following issue to be determined by the Court:

  • "Whether the District Court erred in failing to apply this Circuit's 'inextricably intertwined test before determining that records containing non-deliberative, factual materials may properly be withheld in their entirety under Exemption 5 of the Freedom of Information Act ("FOIA")."

EPIC also filed a motion to consolidate the two appeals into one case, because they present substantially similar legal issues. Citizens for Responsibility and Ethics in Washington ("CREW") will be filing an amicus brief supporting EPIC's position.

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