EPIC Files Suit Against the Deployment of Full Body Scanners in US Airports

To follow up on a previous blog post regarding the airport body scanner program, on July 2, 2010, the Electronic Privacy Information Center (EPIC) in the United States filed a petition against the US Department of Homeland Security (DHS) in federal court for an independent review of the airport body scanner program, and a motion for an emergency stay of said program. The emergency stay aims to prevent a bill that would mandate the deployment of full-body scanners (FBS) in US airports and make full-body scanners the primary screening technique. (The case is EPIC, et al. v. DHS, et al., No. 10-1157. D.C. Circuit Court of Appeals.)

According to the court filing, EPIC asserts that the program is “unlawful, invasive, and ineffective”. Specifically, the Transportation Security Administration‘s (TSA) program violates the federal Privacy Act, the Religious Freedom Restoration Act, the Administrative Procedures Act and the Fourth Amendment of the US Constitution (which protects US citizens from unreasonable searches). Despite earlier claims that the scanners are “configured to prevent TSA officers from storing or retaining any images”, EPIC says government records show that “The TSA required that the devices be able to store and record images of naked air travelers”.

Results of a Freedom of Information Act request from April 2010 allowed EPIC to obtain hundreds of pages of documents from the Department of Homeland Security revealing that the government agency possesses about 2,000 body scanner photos from devices that the DHS previously said “could not store or record images”. EPIC has also obtained the most recent device procurement specifications, and several hundred new pages of traveller complaints.

The mounting objections to FBS are not only coming from EPIC or other civil liberties groups. Hundreds of air travellers have lodged objections with the TSA, alleging a host of law and policy violations arising from the TSA’s FBS searches. American air travellers, as well as several religious groups, have filed objections with the TSA on religious and other grounds. The complaints support EPIC’s position and indicate, among other things, that the scanners are insidious and perform a “virtual strip search”.

On February 20, 2010, it was revealed that Pope Benedict XVI objected to FBS searches because they fail to preserve individuals’ integrity. Agudath Israel, an Orthodox Jewish umbrella group, objects to FBS searches, calling the devices “offensive, demeaning, and far short of acceptable norms of modesty” within Judaism and other faiths. On February 9, 2010, the Fiqh Council of North America objected to body scanners, announcing that “general and public use of such scanners is against the teachings of Islam, natural law and all religions and cultures that stand for decency and modesty.”

In addition, there are claims that full-body scanners are a danger to travellers’ health and safety. Following the release of a report by Dr. David Brenner to the Congressional Biomedical Caucus that claims radiation exposure may be up to 20 times greater than the Department of Homeland Security has acknowledged, EPIC filed a new Freedom of Information Act request with the DHS for studies conducted by the agency and third parties concerning radiation and health testing of body scanners.

Could this be the end of full-body scanners at US airports, and maybe elsewhere? Call me a cynic, but I think a more likely outcome is that this case will be dragged through the courts for years before the US government decides that it’s simply a matter of National Security and therefore immune to challenge. Still, I hope for a win for individual rights.

In positive—and somewhat ironic—news, Dubai has rejected the use of full-body scanners in its airports, “out of respect for the privacy of individuals and their personal freedom” and because they “contradict Islam”. The Economist suggests that, as a result, nearby Doha and Abu Dhabi may also do so. Will any Western country take the challenge seriously and officially reject the machines? Does EPIC have a reasonable case against the US government? Will the US be able to rely on its restrictive new security laws to shut down challenges to the use of full-body scanners? And has any reader actually been through one of these scans?

There are enough questions that we’ll surely be talking about this issue for a long time to come.