Privacy Group Presses Challenge to TSA's Body-Imaging Machinery

The Electronic Privacy Information Center (EPIC) will go to federal court on Thursday to press its substantive challenge to the TSA's rollout of whole body imagers, as the TSA used to call the machines before somebody there decided to find a less alarming euhpemism, "advanced imaging technology."

Some critics merely call the devices, which the TSA plans eventually to use as a replacement for magnetometers at all 2,000 airport checkpoints, "strip-search machines." There are now 486 machines in place at 78 airports, the TSA says.

The EPIC president, Marc Rotenberg, a lawyer, is scheduled to present arguments against the TSA body scanner program on Thursday before the U.S. Court of Appeals for the District of Columbia Circuit. The petition seeks a court order suspending the program.

EPIC calls the body-scanners "invasive, unlawful, and ineffective," and argues that the TSA's deployment of the devices for primary screening violates the U.S. Constitution and several federal statutes.

Here is the full text of the EPIC opening brief.

Here is the TSA's Web site on the machines, with links to all of the agency's arguments in favor of the technology.

EPIC asserts that the Department of Homeland Security "has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history."

Besides EPIC, the petitioners are Chip Pitts, the immediate past-president of the Bill of Rights Defense Committee, who is a lecturer at Stanford Law School and the former chairman of Amnesty International USA; Bruce Schneier, an internationally known security technologist and author; and Nadhira Al-Khalili, legal counsel for the Council on American-Islamic Relations.

Here are the main arguments in the EPIC petition:

--The full body scanner program violates the Administrative Procedure Act.

--The TSA improperly processed EPIC’s Section 553(e) petitions and the Homeland Security Department Privacy Office failed to comply with its statutory mandate to protect travelers’ privacy.

--The body scanner program violates the Fourth Amendment protection against improper searches.

--The program violates the Privacy Act, the Religious Freedom Restoration Act and the Video Voyeurism Prevention Act.

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Some excerpts from the petition:

--"Respondent agency has initiated the most sweeping, the most invasive, and
the most unaccountable suspicionless search of American travelers in history.
Respondent has subjected millions of air travelers to suspicionless searches that
target the most intimate areas of the human body. It has deployed devices, of its
own design, that have the ability to store, record, and transmit these images of the
naked human body. And it has done so in disregard of federal statutes and
Constitutional safeguards that are intended to protect the privacy and religious
rights of individuals and to ensure accountability in agency decision-making. It has
even disregarded a federal privacy law that explicitly prohibits the capture of
naked images by federal officials where there is a reasonable expectation of
privacy."

--"Following respondent’s failure to act on either the First EPIC Petition or the
Second EPIC Petition, as well as the concerns expressed by members of Congress,
and anticipating the Respondent’s intent to accelerate the deployment of body
scanners in U.S. airports, petitioner filed a motion for emergency stay of the
agency’s Rule on July 2, 2010."

--"During the spring of 2009, respondent DHS made a determination that body
scanners, which were previously only deployed for secondary screening in limited
pilot projects, would in the future be deployed as the primary screening technique
in U.S. airports."

--"[The machines'] capabilities enable the capture, storage, and transfer of the images of the naked human body. The machines run an embedded version of Microsoft Windows XP (XPe) that is prone to security vulnerabilities."

--"Travelers have expressed outrage at the invasiveness of the machines, the radiation exposure created by the machines, the lack of signage regarding the machines, and the absence of a meaningful alternative to the scans."

--"Experts in radiology and security have questioned the safety of the machines, and their effectiveness (especially regarding the detection of powdered explosives)."

--"There are proposed alternatives to body scanners, including less intrusive
passive millimeter wave technology and filters that indicate potential threats on an
avatar instead of an actual passenger image. A Jan. 27, 2010, Government Accountability Office report states that TSA has ten passenger screening technologies in various phases of research, procurement, and development."

--"The TSA does not, in practice, offer air travelers an alternative to the body
scanner search. ... The petition quotes travelers on their experiences: [An] air traveler stated that 'when he requested an
alternative screening, the TSA screeners interrogated and laughed at him.') ... 'I was asked/forced into this [body scanner] at BWI airport on 6/30/09.' ... 'I am outraged and angry that what was supposed to be a ‘pilot’ for the millimeter scan machines has now become mandatory at SFO.'"

--"Instead, the TSA claims to offer passengers a pat-down alternative, but many
passengers are never informed of this option. ... 'I was not verbally notified by any TSA official that the Full Body scan was optional … I did not observe any written notice or signage that indicated the full body scan was optional … I have no reason to believe that any traveler who went through security screening at Logan Airport at that time would have been told that the full body scan was optional or that there was an alternative security screening procedure.'"

--"Passengers perceive the pat-down to represent a retaliatory measure for those who do object to the body scanners. '[I] decided to opt out [of a body scan]. My family and I were then subjected to a punitive pat-down search (they went over me three times) that would have been considered sexual assault in any other context."

--"As a matter of pattern, practice and policy, the TSA visually matches air
travelers’ photo ID cards with their boarding passes when travelers pass through
airport security checkpoints. The TSA scans air traveler’s boarding passes,
collecting air travelers’ personal information, when travelers pass through airport
security checkpoints that are equipped with paperless boarding pass scanners.
The TSA is therefore able to associate a specific body-scanner image with the full name, birth date, gender, and travel itinerary of the scanned traveler."

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