EPIC v. Department of Homeland Security - Body Scanners
- EPIC Opposes DHS Plan to Collect Social Media Identifiers: In comments to the Department of Homeland Security, EPIC urged the agency to drop a plan to review the social media accounts of people seeking to visit the U.S. EPIC argued that the proposal threatens important First Amendment rights, risked abuse, and would disproportionately impact against minority groups. Documents obtained by EPIC in 2011 in a Freedom of Information Act lawsuit revealed that the DHS gathered social media comments to identify individuals, including US citizens, critical of the agency and the government. A 2012 Congressional hearing, based on the documents obtained by EPIC, revealed bipartisan opposition to the original DHS social media monitoring program. (Aug. 23, 2016)
- 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)
- Supreme Court Denies EPIC's Petition to Obtain Cellphone Shutdown Policy: Today, the U.S. Supreme Court declined to review EPIC v. DHS, concerning the government's cellphone shutdown policy. EPIC had pursued the secret policyafter government officials disabled cellular service at a BART station in San Francisco during a peaceful protest. A district court in Washington, D.C. ruled in EPIC's favor when the DHS sought to withhold the policy, but the court of appeals later overturned the ruling. EPIC urged the Supreme Court to review the case to resolve a conflict between the D.C. Circuit and the Second Circuit Courts of Appeals. EPIC also pointed to competing public safety interests when cell service is disabled, but the Court declined. Despite today's order, EPIC successfully obtained a redacted version of the shutdown policy. (Jan. 11, 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)
- D.C. Circuit Orders TSA to Produce Schedule for Final Rule on Body Scanners: The Court of Appeal for the D.C. Circuit today ordered TSA to comply with the ruling in EPIC v. DHS and conduct an "expeditious" rulemaking on the use of body scanners at airports. EPIC successfully sued TSA in 2011 to compel notice-and-comment rulemaking after the agency failed to solicit public comments as required by law. EPIC said the body scanner program was "unlawful, invasive, and ineffective." The backscatter x-ray devices were subsequently removed from U.S. airports, though the millimeter devices remain. In 2015 the Competitive Enterprise Institute filed a petition to compel TSA to issue a final rule as required by the EPIC v. DHS mandate. TSA now has 30 days to submit a rulemaking plan to the court. (Oct. 23, 2015)
- Government Gets Second Extension in EPIC Supreme Court Case about Cellphone Shutdown Policy: The US Supreme Court has granted the Solicitor General more time to respond to EPIC's charges that the government's effort to keep under wraps a controversial cellphone shutdown policy violates the law. EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011. After EPIC prevailed in district court and a judge ordered release of the policy, the government appealed and a federal appeals court reversed. In the Supreme Court petition, EPIC argued that the was "contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." The government's response is now due on November 13. (Oct. 12, 2015)
- Government Gets Extension in EPIC Supreme Court Case about Cellphone Shutdown Policy: The US Supreme Court has granted the Solicitor General extra time to respond to EPIC's charges that the government's effort to keep under wraps a controversial cellphone shutdown policy violates the law. EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011. After EPIC prevailed in district court and a judge ordered release of the policy, the government appealed and a federal appeals court reversed. In the Supreme Court petition, EPIC argued that the was "contrary to the intent of Congress, this Court's precedent, and this Court's specific guidance on statutory interpretation." The government's response is now due on October 14. (Sep. 14, 2015)
- Appeals Court Turns Down EPIC's Challenge to Cellphone Shutdown Secrecy : The Court of Appeals for the D.C .Circuit has denied EPIC's petition for further review of EPIC v. DHS, 14-5013. The Court sided with the DHS earlier this year, ruling that the agency could withhold from the public its cellphone shutdown policy. EPIC then asked that the full Court review the earlier ruling, arguing that the three-judge panel misconstrued the relevant law. The case is now headed back to the district court to determine which portions of the secret document the DHS must release. EPIC brought the case after cellphone service in a BART station was shutdown in advance of a peaceful protest. (May. 14, 2015)
- 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)
In EPIC v. Department of Homeland Security, EPIC has sought the release of documents regarding whole body imaging (WBI) held by the agency.
In February 2007, the Transportation Security Administration, a component of the US Department of Homeland Security, began testing passenger imaging technology - called “whole body imaging,” "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." In 2007, TSA tested whole body imaging systems at airport security checkpoints, screening passengers before they board flights. The agency provided various assurances regarding its use of whole body imaging. TSA stated that whole body imaging would not be mandatory for passengers and that images produced by the machines would not be stored, transmitted, or printed. TSA also stated that an algorithm will be applied to the image to mask the face of each passenger.
But on April 27, 2007, TSA removed from its website assurances that its whole body imaging technology would “incorporate a privacy algorithm” that will “eliminate much of the detail shown in the images of the individual while still being effective from a security standpoint.” And on February 18, 2009, TSA announced that it would require passengers at six airports to submit to whole body imaging in place of the standard metal detector search, which contravenes its earlier statements that whole body imaging would not be mandatory. On April 6, 2009, TSA announced its plans to expand the mandatory use of whole body imaging 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.
EPIC's Freedom of Information Act Requests and Subsequent Lawsuit
On April 14, 2009, 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 TSA body scanner program. EPIC requested the following agency records:
- all documents concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals;
- all contracts that include provisions concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals;
- all instructions, policies, and/or procedures concerning the capability of passenger imaging technology to obscure, degrade, store, transmit, reproduce, retain, or delete images of individuals.
DHS acknowledged receipt of EPIC's FOIA request, but failed to disclose any documents. On November 9, 2009, EPIC sued DHS to force disclosure of the body scanner 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 technical standards, but failed to produce all records demanded in EPIC's FOIA request. The lawsuit is ongoing.
On July 2, 2009, EPIC filed a second, related FOIA request. EPIC requested the following agency documents:
- All unfiltered or unobscured images captured using Whole Body Imaging Technology (WBI);
- all contracts entered into by DHS pertaining to WBI systems, including contracts for hardware, software or training;
- all documents detailing the technical specifications of WBI hardware, including any limitations on image capture, storage or copy;
- all documents, including but not limited to presentations, images and videos used for training persons to use WBI systems;
- all complaints related to the use of WBI and all documents related to the resolution of those complaints;
- all documents concerning data breaches of images generated by WBI technology.
DHS acknowledged receipt of EPIC's FOIA request, but failed to disclose any documents. On January 13, 2010, EPIC sued DHS to force disclosure of the additional body scanner documents. The second suit challenged DHS's failure to disclose public records and failure to comply with the Freedom of Information Act. This suit was later consolidated with EPIC's first lawsuit against DHS.
Documents Obtained by EPIC Through Its Lawsuit
On January 11, 2010, EPIC released documents obtained from DHS as a result of EPIC's lawsuit.
The disclosed documents include TSA Procurement Specifications for body scanners, TSA Operational Requirements for the machines, a TSA contract with L3 (a company that manufactures whole body imaging devices), and 2 TSA contracts with Rapiscan, another body scanner manufacturer (1), (2).
The documents contradict numerous assurances made by the TSA regarding the body scanners. The records demonstrate:
- The device specifications, set out by the TSA, prove the machines’ ability to store, record, and transfer images, contrary to the representations made by the TSA
- The device specifications, set out by the TSA, include hard disk storage, USB integration, and Ethernet connectivity that raise significant privacy and security concerns
- The DHS Privacy office failed to adequately assess the privacy impact of these devices
- The TSA continues to withhold critical documents from the public concerning body scanners' operation.
On March 2, 2010, EPIC obtained further documents from DHS as a result of EPIC's lawsuit. These documents included more than thirty traveler complaints to the TSA regarding WBI machines. The complaints described a variety of problems with WBI machines, including objections to the invasive nature of the machines and complaints about improper signage and a lack of transparency regarding the pat-down alternative. The complaints indicated that TSA was not fulfilling its duty to inform passengers of their options regarding WBI machines.
On March 15, 2010, EPIC obtained hundreds of pages of additional traveler complaints (see below for links). This further contradicted TSA's statements that travelers approve of WBI machines and are being informed of their option for a pat-down.
On April 15, 2010, EPIC obtained several hundred more pages of documents. This included hundreds of pages of traveler complaints, an updated Procurement Specifications Document, and several vendor contracts. DHS refused to release several of EPIC's requested documents, including over 2000 WBI machine generated images.
EPIC v. the Department of Homeland Security, Case No. 09-02084(RMU) (D.D.C.filed Nov. 9, 2009)
- EPIC's First Complaint Against DHS (pdf)
- EPIC's Second Complaint Against DHS (pdf)
- DHS' Answer (pdf)
- Motion for Summary Judgment by DHS (pdf)
- EPIC's Opposition to DHS' Motion For Summary Judgment, Cross-Motion For Summary Judgment (pdf)
- DHS' Reply In Support Of Its Motion For Summary Judgment, And Opposition To EPIC's Cross-Motion For Summary Judgment (pdf)
- EPIC's Reply In Support Of Its Cross-Motion For Summary Judgment (pdf)
- Memorandum Opinion (pdf)
- EPIC's April 14, 2009 Request for Agency Records under the Freedom of Information Act
- EPIC's July 2, 2009 Request for Agency Records under the Freedom of Information Act
- DHS's First Interim Production of Records to EPIC:
- TSA Traveler Complaints Regarding Whole Body Imaging Part One
- TSA Traveler Complaints Regarding Whole Body Imaging Part Two
- TSA Traveler Complaints Regarding Whole Body Imaging Part Three
- TSA Traveler Complaints Regarding Whole Body Imaging Part Four
- TSA Traveler Complaints Regarding Whole Body Imaging Part Five
- Logan Airport Looks Forward to Less Revealing Scanners, Donna Goodison, Boston Herald, July 16, 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.
- Full-body security scanners scrapped at Dubai airports, officials say the device "contradicts Islam", Aliah Shahid, New York Daily News, July 6, 2010.
- Full-body scanners could pose cancer risk at airports, U.S. scientists warn, Ben Mutzabaugh, USA Today, July 1, 2010.
- ,Sikh concerns delay hand search plans at UK airports, Dil Neiyyar, BBC News, June 30, 2010.
- Rights Panel Urges Ban on Body Scanners, Bae Hyun-jung, Korea Herald, June 30, 2010.
- Body Scanners Violation of Privacy, Elham Asaad Buaras, The Muslim News, June 25, 2010.
- European commission is fence-sitting on body scanners, Sarah Ludford, The Guardian, June 24, 2010.
- US Outstrips Europe on Body Scanners, Valentina Pop, Business Week, June 23, 2010.
- Miami Airport Screener Accused of Attack After Jeers at Genitals, Dan Ovalle, Miami Herald, May 7, 2010.
- Airport Worker Warned in Scanner Ogling Claim, Michael Holden, Reuters, March 24, 2010.
- Scanners may not have detected alleged explosive in Detroit jet case, GAO reports, By Spencer S. Hsu, Washington Post, March 18, 2010
- Travelers file complaints over TSA body scanners, Jaikumar Vijayan, Business Week, March 8, 2010
- Muslim woman refuses body scan at airport, Will Pavia, London Times Online, March 3, 2010
- Suspend airport body scanner program, privacy groups say, Jaikumar Vijayan, Computerworld, Feb. 26, 2010
- EPIC wants TSA to halt implementation of body scanners at airports, Doug Hanchard, ZCNet, Feb. 24, 2010
- Scannergate: Facts Contradict Heathrow Claim That Naked Images Can't Be Printed, Paul Joseph Watson, Prison Planet.com, Feb. 10, 2010
- Body scans: for their eyes only, Andrea Sachs, Washington Post, Feb. 6, 2010
- Airport-security plan calls for 500 body scanners in '11, Thomas Frank, USA Today, Feb. 3, 2010
- Why Europe doesn't want an invasion of body scanners, Ben Quinn, The Christian Science Monitor, Jan. 26, 2010
- Full-Body Scans: Virtual Strip Searches or Magic Boxes?, Katie Glueck, Politics Daily, Jan. 25, 2010
- Scanners can store images, group says , Joel Tiller, The Globe and Mail (UK), Jan. 12, 2010
- US airport body scanners can store and export images, Chris Mellor, The Register, Jan. 12, 2010
- TSA Admits Body Scanners Store and Transmit Body Images, Barbara E. Hernandez, BNET, Jan. 12, 2010
- Mixed Signals on Airport Scanners, Matthew L. Wald, The New York Times, Jan. 12, 2010
- Full-body scanners used on air passengers may damage human DNA, Mike Adams, Natural News.com, Jan. 11, 2010
- Body scanners can store, send images, group says, Jeanne Meserve and Mike M. Ahlers, CNN.com, Jan. 11, 2010
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Communications Law and Policy
Jerry Kang and Alan Butler