EPIC Lawsuit to Suspend Deployment of Body Scanners at US Airports

http://epic.org/privacy/body_scanners/epic_v_dhs_suspension_of_body.html

by mhb • 16 years ago

269 85 16 years ago

sstone4• 16 years ago

Almost no politician would ever vote for removing this awful "security" measure. They would risk being blamed when another incompetent terrorist mastermind passes security and hopefully gets stopped by, now much more vigilant passengers. Going to the courts seems like a good way around that - sue the TSA.

If someone with experience on these types of issues could comment I would be very interested to learn if this has any chance of removing those damn machines from airports.

pchristensen• 16 years ago

Help us grellas, you're our only hope ...

geuis3• 16 years ago

Make a list of congressmen and senators that require you to let nude photos of your children to be taken by government employees. It's all about how you frame the argument

mhb2• 16 years ago

That's good for the thin end of the wedge, but it might suggest that if the children are exempted from this nonsense, then the problem is solved.

Also it sets up what could be spun as a bargaining chip. Exempt the kids and they can scan the adults.

pjscott3• 16 years ago

I suppose so, but such blatantly manipulative tactics make me feel unclean.

tjmc• 16 years ago

Better still - post the backscatter photos of those congressmen and senators online. I just hope I don't see them!

palewery• 16 years ago

When some congressman's 14 year old grandchild gets felt up by a perv things would change very fast

LiveTheDream• 16 years ago

Apparently Congressman Jason Chaffetz introduced a bill against the full-body scanners[1].

[1] http://en.wikipedia.org/wiki/Jason_Chaffetz

sstone4• 16 years ago

His intention is to make them secondary. I'm sure the TSA would have none of that - it would just be magnetometer set to the highest sensitivity first - scanner second - for everyone.

eli2• 16 years ago

A good first step would be to eliminate separate security lines for First Class/VIP and everyone else. I suspect security lines would end up being shorter if our elected officials had to go through exactly the same process as the rest of us.

Zak2• 16 years ago

As a hack, just go through the first class line regardless of the class you're flying in. I know several people who do this, and none have been questioned about it. The obvious response is: "Why should paying the airline more money get people better treatment from the Federal government?".

warpwoof2• 16 years ago

Awesome, Bruce Schneier is part of the lawsuit:

"Three frequent air travelers are joining 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 have brought claims under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment."

sstone4• 16 years ago

Yes, he has been following this thing for a long time.

"Only two things have made flying safer [since 9/11]: the reinforcement of cockpit doors, and the fact that passengers know now to resist hijackers."

http://www.schneier.com/news-072.html

geuis3• 16 years ago

This isn't about religion. It's about invasion of privacy and degradation of the human spirit by an uncontrolled government bureaucracy that thinks it has a free hand by waving around the fear flag. This smells like the McCarthy era.

donohoe• 16 years ago

Of course its not about religion in itself. Religion is only one aspect of this, there were others: "Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment"... there 4 other reasons.

Not sure why you choose to pick on religion in itself when it was within context of other reasons. For those of a religious persuasion the invasion of privacy may be an additional problem on top of the normal intrusiveness of these scanners.

latch2• 16 years ago

Rights, like a muscle, must be exercised.

However, I feel entering a country which I'm not a citizen of (like the US), is a privilege, not a right. Thus, they can ask anything of me they want..and I can chose not to enter the country.

ojbyrne• 16 years ago

Body scanners aren't just used at entry to the US, they're used to get on domestic flights also.

latch2• 16 years ago

yes, I understand that, and I have no problems with a separate set of rules (which, in fact, already exist). I'm just pointing out a different perspective.

adw• 16 years ago

The only time I've been through one (I'm a UK citizen) has been on a US domestic flight: Reagan, DC to Newark.

sstone4• 16 years ago

People in the lawsuit are US citizens. They just don't want to get naked and receive more radiation every time they board any flight in the US.

People outside the US must also sometimes fly to the US for business purposes. It is not easy sometimes to choose not to go to the US.

ataggart2• 16 years ago

Note that (unless otherwise worded) the Constitution's "protections" are actually restrictions on the government, and apply everywhere and always to government agents acting under constitutional authority. As such, the nationality of the those with whom the government interacts is irrelevant.

I imagine that you can opt-out of the electronic strip search, just as US citizens can.

An interesting, though sadly irrelevant note: the Constitution does not grant to the Federal government the power to regulate foreign immigration.

tptacek9• 16 years ago

Nationality may be irrelevant, but a US border setting certainly is not. As a rule of thumb: you have drastically diminished rights at the US border.

pyre2• 16 years ago

  > However, I feel entering a country which I'm not
  > a citizen of (like the US), is a privilege, not a
  > right. Thus, they can ask anything of me they want..
  > and I can chose not to enter the country.

What about when your flight makes an emergency landing in the US (i.e. a passenger has a heart-attack)? You are forced to enter the country even though you may not want to.

This was the case with some Iranian refugees that were trying to seek asylum in Canada. They had fake Greek passports, and their flight had to make an emergency landing in the US. The US officials then arrested them for trying to enter the US with fake passports.

TallGuyShort• 16 years ago

As exciting as this sounds, the dates are all at least several months old. Anybody know more about the current status of this, or the direction it's heading?

warpwoof2• 16 years ago

I think you are looking at other news items on the page that are several months old?

The actual document submitted to the court is dated November 1, 2010.

[PDF] http://epic.org/privacy/litigation/EPIC_Body_Scanner_OB_Fina...

kia• 16 years ago

From my experience full body scanners are much faster and more convenient compared to traditional system when you take off your shoes and go through metal detector. If you are unlucky an airport worker additionally scans you with a hand metal scanner. With full body scanner you just enter the cabin and voila! The scan takes 3 seconds.

ck22• 16 years ago

That's because the person in the other room can stare and share your image for quite some time after it's taken. 3 seconds for you, but as long as they want for them.

jonnathanson• 16 years ago

It's not even the nudity that bothers me, personally. It's the radiation. I didn't sign up for unshielded exposure to dangerous levels of radiation when I bought my airplane ticket.

Ultimately, I think a public health angle would have been a far more effective tact to take in the lawsuit or in the arguments against these scanners. It's the trump card. Privacy always loses an argument to fear and "security" in our post-9/11 national discourse. Sad to say, but that's true. Health, though? That's a different matter.

mhb2• 16 years ago

Why do you think the amount of radiation is dangerous?

incomethax• 16 years ago

From Wikipedia (http://en.wikipedia.org/wiki/Backscatter_X-ray)

The Health Physics Society (HPS) reports that a person undergoing a backscatter scan receives approximately 0.05 μSv (or 0.005 mrems) of radiation; American Science and Engineering Inc. reports 0.09 μSv (0.009 mrems). At the high altitudes typical of commercial flights, naturally occurring cosmic radiation is considerably higher than at ground level. The radiation dose for a six hour flight is 20 μSv (2 mrems) - 200 to 400 times larger than a backscatter scan. According to U.S. regulatory agencies, "1 mrem per year is a negligible dose of radiation, and 25 mrem per year from a single source is the upper limit of safe radiation exposure".

The radiation exposure with Backscatter X-Ray's is really a non-issue.

IMO its much more damning to bring on the "think of the children"/"The Chinese government can hack your wife's nude pics" angle to convince the public against these machines.

barrkel• 16 years ago

That's not been my observation: queues are longer, and people have to take more stuff out of their pockets for the full body scanners. The scanner also takes longer: you have to be stationary for a bit, while you just walk through the metal detectors. The speed of the metal detector queues is limited by the speed of the hand-luggage x-ray machine, not by the speed of the metal detector.

FWIW, it's only in US airports that I've had to take off my shoes for the past year or so.

ataggart2• 16 years ago

At SFO, my only experience with them, one still has to doff ones shoes, and walk through a metal detector. As such, the only choice you get is between a firm pat-down or an electronic strip search.

I choose the former. It annoys them and I get to make at least one TSA agent uncomfortable.

cpr2• 16 years ago

I might agree for myself, but what about our wives and children? We simply can't allow it.

camiller• 16 years ago

1776: "Then it's agreed, gentlemen, in order to secure our rights as a free people, we will risk embarrassment, imprisonment, expropriation, bankruptcy, bodily harm, exile and hanging."

2010: "Of course I'll waive my rights. I don't want to miss my connecting flight."

ck22• 16 years ago

Why didn't they add some kind of protection act for children to this lawsuit as well?

They are making children go through these things and then showing them naked to who knows? That violation should surpass the far more vague "religious freedom".

daten2• 16 years ago

Can both sides play the "think of the children" card in the same fight?

pjscott3• 16 years ago

On that note, who says only two sides can play the "think of the children" card? To demonstrate otherwise, I'm going to make a third side which says that naked children aren't inherently that big a deal, and that greater harm comes from the implicit sexualization of children, and the paranoia about sexual predators that it causes. I don't really mind backscatter machines in airports; I find them funny and entertaining, if only for the vaguely Caramelldansen-like hands-above-the-head pose they had me assume last time I went through one.

What does bother me is how every time there's a sensational incident -- a terrorist attack, or someone getting kidnapped, or whatever -- people start screaming for someone in the government to DO SOMETHING!!1, and we end up spending an inordinate amount of time and resources guarding against something that happened once and isn't too likely to happen again. Smart terrorists would stay the hell away from airports; they'd get a higher marginal return on their efforts if they went for easier targets like sports stadiums or crowded subways. And if that starts happening, what are we going to do? Put backscatter machines and security guards everywhere? Completely sacrifice all privacy to assuage our fears about the most unlikely events, while neglecting the real killers, like car crashes and cancer?

So to hell with it. Go ahead and make me remove my shoes at the airport and strike a ridiculous pose in a backscatter machine; I'll just laugh it off. What worries me is the preposterous irrationality, and where it'll lead if we give it free rein for long enough. Won't somebody please think of the children?

daimyoyo• 16 years ago

I want the airlines to pay attention to what I'm about to say: Until these electronic strip search machines are taken out, I will NEVER fly again. I've done nothing wrong and I will not tolerate being treated like a criminal simply because you think you can get away with it.

wjy• 16 years ago

With all due respect, if you want the airlines to listen to you, you should say it to them, not HN.

Silhouette• 16 years ago

I'm with the GP, and we do better than merely saying it to the airlines: we vote with our wallets.

Given the recent comments by air industry bigshots in the UK, it appears that they're starting to get the point, too.

michael_nielsen• 16 years ago

It's not the airlines. It's the TSA, an entirely separate organization. I've little doubt that most of the airlines hate this - it almost certainly negatively impacts their bottom line.

marquis• 16 years ago

I wonder if women might, on mass, protest these machines by saying 'I may be pregnant' or 'I am breastfeeding'. If this is a suitable means of gentle civil disobedience, perhaps another method is suggest for men? I myself am considering to use the 'possibly pregnant' method next time I fly in the US and am curious what the response will be, and how I am treated in the pat-down.

eof• 16 years ago

I've been thinking about how to work myself up to a hard on before going through as a form of reverse molestation.

waterlesscloud• 16 years ago

forget court, write airlines and tell the why you now fly less. they have more power here.

random42• 16 years ago

As an Non-American, While reading the article, I got the vibe, that the ideology at the TSA security check is,

Unless proven otherwise, everyone is a terrorist (criminal)

IANAL, but where does US constitution/judicatory stand on it?

wrs• 16 years ago

The purpose of this lawsuit is to answer that question. Though I have to say that for the past 9 years, the constitution, judiciary, and legislative branches of the U.S. haven't seemed to have much influence on anything that is supposedly "needed to fight terrorism".

tptacek9• 16 years ago

That's not true. The lawsuit doesn't challenge the doctrine of administrative searches, and goes as far as to concede that full-body scans are constitutional as a secondary screening measure (for people who set off the metal detector, or who can't go through the detector, or have prosthetics, or are on a watchlist, or become random selectees).

At issue in this lawsuit is the specific question of whether an electronic strip search can qualify as an administrative search, which must balance the public interest against the intrusiveness of the search.

tptacek9• 16 years ago

The Supreme Court has upheld the constitutionality of "administrative searches", which aren't targeted, don't require a warrant, don't require individual suspicion, and which are used to protect public safety and not to conduct criminal investigations.

cowboyhero• 16 years ago

IANAL, but I believe this also allows the cops to set up random DUI roadblocks (ie, untargeted, no warrant, no individual suspicion, public good, etc).

knodi• 16 years ago

"Those who are willing to trade freedom for security deserve neither freedom nor security." - Benjamin Franklin

tptacek9• 16 years ago

My guess is they're going to get shellacked.

The first thing you have to understand here is that the constitutionality of airport searches isn't in question. SCOTUS has upheld a doctrine of "administrative searches", taken in order to advance public safety rather than criminal investigations, which are explicitly intended to apply universally, without a warrant, and without individualized suspicion.

The second bit of background you should have is 49 USC 44925, which mandates that the TSA research and deploy advanced screening technology, specifically to detect nonmetallic objects. I'm no lawyer, but I do enjoy reading SCOTUS civil liberties opinions, and by and large the court seems to give deference to the legislature when no clear constitutional issue is at stake. In sum: the court has an "out" here, which is "the intent to search passengers is already constitutional, so if this variant of the search is so bad, pass a law".

The Supreme Court has not outlawed strip searches (obviously they can't, as virtually everyone who gets arrested and booked is strip searched, guilty or not). If you read the Savana Redding opinion (8-1 "it's unconstitutional to strip search an 8th grade girl for ibuprofen"), you'll see things like "Its indignity does not outlaw the search, but it does implicate the rule that "the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’". That is, unfortunately, not a hard case for TSA to make. The fact that the Savana search was for "nondangerous contraband" also factored into the opinion.

(If you want to throw up in your mouth a little bit, track down Clarence Thomas' dissent which argued that it is indeed constitutional to strip search a 13 year old girl in school to track down Advil.)

Finally, the arguments EPIC makes here do not seem awesome. Part of their argument turns on administrative rulemaking procedures at TSA, which TSA seems to dismantle efficiently in their response. Other parts drag in things like the Religious Freedom Restoration Act, which is (a) a longshot argument for petitioners who can claim no personal religions infringed on and (b) is neatly sidestepped by the TSA "opt-out" rule. Speaking of opt-out: EPIC claims that there is no effective opt-out procedure, which is also a hard argument to defend without an example of someone refused an opt-out. And on this janky scaffold of arguments, EPIC wants an emergency injunction against the scanners?

Don't get me wrong, I'm obviously in their corner on this. I'm thrilled if they win. And they've got some painful evidence, such as FOIA docs showing TSA required machines with store/transmit capabilities (oops!). But my guess is that if we want to get rid of the strip search machines, we're going to have to do it by voting out the people who approved them.

nubian3• 16 years ago

You're mistaken in practically every assertion you make above.

Without going over a point-by-point of the various ways your post is incorrect (e.g. regarding the scope of administrative searches; the ability of the SCOTUS to regulate searches at jails; the actual lawsuits which have resulted in most jails being much more limited in the scope of their searches absent reasonable suspicion; the TSA's inability to detect shoe bombs with the normal x-ray machines and underwear powder bombs with the new scanners; people who HAVE been refused an opt-out (reports at FlyerTalk.com); "voting out" the people who approved them, when a primary mover behind them is the Chertoff group, headed by former DHS head Michael Chertoff, who stand to gain financially from their lobbying thanks to ties to Rapiscan; and so forth), I am going to repost something from the other day which bears repeating.

Original: http://news.ycombinator.com/item?id=1854787

------------------------------------------------------------

There are multiple problems with TSA screening in general, and backscatter machines in particular, which are listed below.

As these machines are ill-advised, you currently have the option to "opt out" and receive a pat-down instead.

PAT-DOWNS:

New guidelines just instituted for the pat-down procedure include groping of breasts, buttocks, and crotches. [8][15] Even for minors. [13] [14]

"My wife tells me that they grabbed my [10-year-old] son's privates and he was crying the whole time and all she could do was stand there and tell him it was going to be OK." [16]

Due to this, the ACLU is now taking reports of pat-down abuse:

http://www.aclu.org/technology-and-liberty/tsa-pat-down-sear...

Note that going through a scan does NOT exempt you from a pat-down grope. You may be groped if you trigger a metal detector, or if your backscatter shows an "anomaly", or for any other reason or no reason at all. There are also gate screenings, where you will be pulled aside at the gate, and since there are no machines, you will be patted down / groped.

IMPACT

About 1 in 5 people are sexually assaulted by age 18. [1]

This means that even "normal" pat-downs are extremely distressing or damaging to a significant percentage of the population, and these new procedures are simply sexual assault under color of authority, which can be traumatic. Victims of sexual assault, molestation, and rape often feel like they are re-living their experiences, and even those who don't have such a background may experience emotional damage from the procedure.

I defy anyone to belittle the experience of victims of sexual abuse, who do not want any unwanted touching forced upon them, least of all groping of private areas.

BACKSCATTER SCANS

All the official images have been redacted. Here is what it REALLY looks like, scaled down:

http://dams.rca.ac.uk/res/sites/Show2006/Images06/John_Wild_...

This is an artist's self-portrait using a Rapiscan Secure 1000 security scanner [17]. In addition to clearly seeing his genitals, note the penetration into his kneecaps, shin bones, and feet. Then consider the unprotected areas, such as face, neck, and eyes. Look more closely and you can see the bones in his forearms (radius, ulna), part of his humerus, and his hands.

Then consider the findings of people like David Brenner, the head of Columbia University’s Center for Radiological Research, who explains that the dose is actually 20 times higher than the official estimate. [2] [3] [4] [5]

The energy is absorbed mostly in the skin, NOT throughout the volume of the entire body as with other types of ionizing radiation. Also, the dosage is delivered in a few (under 30) seconds. You have to consider dose per unit time; the figures often mentioned for long flights mention the total dose, which is distributed over a period of HOURS.

PRIVACY

The TSA originally claimed that these machines were simply INCAPABLE of storing images. That wasn't true:

"The documents, released by the Department of Homeland Security, reveal that Whole Body Imaging machines can record, store, and transmit digital strip search images of Americans" [6]

This also goes for MMW (millimeter wave) machines used by courthouses:

"Feds admit storing checkpoint body scan images" [7]

ANONYMITY

Some locations are now using a full-color video camera in addition to the backscatter / MMW imager. This means your full-body color portrait and unclothed image can be linked; and if they scan your boarding pass or other identifying information, they can link your images to your name and other personal information (phone number, address, BIRTH DATE). [12]

SLIPPERY SLOPE

Originally the TSA claimed the backscatter machines were optional and there was no penalty for declining (no groping); that they had no capability to store images; that they would NEVER be used as primary screening instead of metal detectors (now they ARE being used as primary screening in some airports with plans for the rest -- see [9] [10]).

The supposed motivation for storing images would be in case of another attempt like the underwear bomber, to go back and "check the tapes" to see what they missed.

You should probably assume that if you are scanned, your full-color and naked images along with personal identifying information will be stored by Federal agencies in perpetuity.

EVEN DHS HEAD REFUSES BODY SCANNER

"Department of Homeland Security Secretary Janet Napolitano yesterday hailed them as an important breakthrough for airport security and the fight against terrorism."

"Yet when it came to testing the devices - which produce chalky, naked X-ray images of passengers - she turned the floor over to some brave volunteers." [11]

OPT-OUTS MAY NOT LAST

In the U.K., whole-body scanners have been mandatory for some time. This may well come to the U.S.

So, you will be forced to be scanned, after which you may be groped anyway, then groped again at the gate, and your images both clothed and naked will be in the bowels of a government database, which then gets turned over to various private industry bidders, who all will have a copy of all your information.

Some scanners take images in real-time at a decent framerate, which means your 3D biometric information of every part of your body will soon be recorded forever and used in any number of ways.

[1] http://www.ncdsv.org/images/SexualAssaultStatistics.pdf

[2] http://www.news.com.au/travel/news/naked-scanners-may-increa...

[3] http://www.telegraph.co.uk/travel/travelnews/7862265/Airport...

[4] http://www.dailymail.co.uk/health/article-1290527/Airport-bo...

[5] http://travel.usatoday.com/flights/post/2010/07/full-body-sc...

[6] http://epic.org/2010/01/update---epic-posts-tsa-docume.html

[7] http://news.cnet.com/8301-31921_3-20012583-281.html?part=rss...

[8] http://news.travel.aol.com/2010/10/29/tsa-launches-enhanced-...

[9] http://www.management.travel/news.php?cid=body-scans-body-sc...

[10] http://www.wired.com/dangerroom/tag/backscatter-x-ray/

[11] http://www.nydailynews.com/ny_local/2010/10/22/2010-10-22_bo...

[12] http://www.consumertraveler.com/today/no-birthdate-no-ticket...

[13] http://www.flyertalk.com/forum/travel-safety-security/114134...

[14] http://www.flyertalk.com/forum/travel-safety-security/341574...

[15] http://www.theatlantic.com/national/archive/2010/10/for-the-...

[16] http://www.reddit.com/r/AskReddit/comments/dyrr8/help_i_beli...

[17] http://www.rupture.co.uk/Self_portrait.html

tptacek9• 16 years ago

Yeah, uh, I don't disagree with anything (except your first graf) you wrote, and I'm glad to give you a chance to get that off your chest, but, want to bet?

jdp23• 16 years ago

Well said nubian. I sent this link to a civil liberties lawyer who didn't think much at all of tptacek's comment and was surprised to see it rated so highly.

uvdiv• 16 years ago

I dispute this:

>The energy is absorbed mostly in the skin, NOT throughout the volume of the entire body as with other types of ionizing radiation. Also, the dosage is delivered in a few (under 30) seconds. You have to consider dose per unit time; the figures often mentioned for long flights mention the total dose, which is distributed over a period of HOURS.

First, your comparison is misleading. The dose of a backscatter x-ray is about 0.02 uSv [1]. The dose rate at 40,000 ft is around 6 uSv/hour [2]. Simply sitting in an airplane exposes you to the equivalent of a backscatter x-ray every 12 seconds (not "hours"). The dose rates are comparable; the flights last hundreds of times longer, hence give hundreds of times higher doses.

Second, your emphasis on "dose per unit time" (or dose rate) isn't actually important. For low doses (and these are EXTREMELY low doses), there is no difference between fast and slow exposure [3]:

>When you are asked whether there is a critical time period over which 1 rem of dose may have a greater biological impact than it might otherwise have, the answer is "No." One rem of dose is sufficiently low that whether it was delivered within one second or spread over a year or more, we would not expect any difference in biological effects.

(Note 1 rem = 0.01 Sievert (Sv) -- 500,000x higher than a backscatter x-ray).

[1] http://www.npr.org/templates/story/story.php?storyId=1268330...

[2] http://www.swpc.noaa.gov/info/RadHaz.html

[3] https://hps.org/publicinformation/ate/q8325.html

oiuyftgrghjk2• 16 years ago

Of course if you were a terrorist wouldn't a line of hundreds of people all being crowded into one space BEFORE security make a much nicer target?

And if somebody did detonate a backpack full of nails in the security queue how they react - more security and make the queues longer?

SapphireSun• 16 years ago

It seems to me the most expeditious way to keep people safe from bomb attacks at the airport would be to have more flights with smaller airplanes that way you reduce the concentration of people and remove the queues. If you have 40 passengers on a plane and 10 of them are terrorists, then that leaves 30+crew to resist them less small children and cripples (so probably, pulling a number out of the air, 15-25 people to resist 10).

oiuyftgrghjk2• 16 years ago

But you still have queues as 100,000 people all have to get into the airport through one security point.

At my local airport they have even built it underground so you queue for security in a long sloping concrete passageway - brilliantly designed for maximum casualties, hardest exit and most difficult to fight a fire in

mmaunder• 16 years ago

I'd settle for TSA employees working naked - a kind of Orwellian nudist colony. At least I could giggle back.

EPIC Lawsuit to Suspend Deployment of Body Scanners at US Airports

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