Tuesday, July 13, 2010

EPIC Files Lawsuit Against Airport Body Scanners, Growing Consumer Backlash

Good news: The Electronic Privacy Information Center (EPIC), the organization that has really led the charge against the recent expansion of whole body imaging machines in US airports (i.e. "digital strip search"), has sued the Department of Homeland Security in federal court, seeking an emergency stay of the body scanner program.

As I wrote in my article "The Politics of Fear and "Whole-Body-Imaging", these full-body scanners see through clothing, producing images of naked passengers.

As I also lay out in detail, there are MANY reasons to oppose the widespread use of these scanners, from the obvious, privacy, to the less so, they won't make us any safer. In fact, if you define the word "safe" as also including the concept of "safe" from government intrusiveness and corporate profiteering off fear peddling, than I would argue these machines make us less safe, not more.

But, before I run down all the reasons why I personally have a BIG problem with these scanners, I want to discuss in a little more detail both the EPIC lawsuit, as well as what appears to be a growing consumer backlash too.

As for the EPIC suit, Roger Yu of the USA TODAY reported the following last week:

The program is "unlawful, invasive, and ineffective," says Marc Rotenberg, president of EPIC and lead counsel in the case.

According to the EPIC filing, the Transportation Security Administration program violates the federal Privacy Act, the Religious Freedom Restoration Act and the Administrative Procedures Act.

It also asserts that the program violates the Fourth Amendment, as the body scanners are "highly invasive and are applied to all air travelers without any particular suspicion."


In an editorial written for the Washington Post in January, Chertoff said the machines are "configured to prevent TSA officers from storing or retaining any images."

But Rotenberg says government records obtained through a Freedom of Information Act lawsuit revealed that "the TSA required that the devices be able to store and record images of naked air travelers."

This is clearly an important step. But perhaps more important to the prospects of these scanners invading individual privacy in airports across the country is whether the public remains supportive of them. Early polling indicated in the range of 80% support - but that was before passengers started being more regularly subjected to them.

Gary Stoller, also of USA TODAY, recently documented what appears to be a growing backlash against these digital strip search devices. This is particularly hopeful news, because at the end of the day, if the flying public revolts against these scanners it will be monumentally more difficult to justify their exorbitant costs. He writes:

Opposition to new full-body imaging machines to screen passengers and the government's deployment of them at most major airports is growing.

Many frequent fliers complain they're time-consuming or invade their privacy. The world's airlines say they shouldn't be used for primary security screening. And questions are being raised about possible effects on passengers' health.

"The system takes three to five times as long as walking through a metal detector," says Phil Bush of Atlanta, one of many fliers on USA TODAY's Road Warriors panel who oppose the machines. "This looks to be yet another disaster waiting to happen."

The machines — dubbed by some fliers as virtual strip searches — were installed at many airports in March after a Christmas Day airline bombing attempt. The Transportation Security Administration (TSA) has spent more than $80 million for about 500 machines, including 133 now at airports. It plans to install about 1,000 by the end of next year.

The machines are running into complaints and questions here and overseas:

•The International Air Transport Association, which represents 250 of the world's airlines, including major U.S. carriers, says the TSA lacks "a strategy and a vision" of how the machines fit into a comprehensive checkpoint security plan. "The TSA is putting the cart before the horse," association spokesman Steve Lott says.

•Security officials in Dubai said this month they wouldn't use the machines because they violate "personal privacy," and information about their "side effects" on health isn't known.

•Last month, the European Commission said in a report that "a rigorous scientific assessment" of potential health risks is needed before machines are deployed there. It also said screening methods besides the new machines should be used on pregnant women, babies, children and people with disabilities.

The U.S. Government Accountability Office said in October that the TSA was deploying the machines without fully testing them and assessing whether they could detect "threat items" concealed on various parts of the body. And in March, the office said it "remains unclear" whether they would have detected the explosives that police allege Umar Farouk Abdulmutallab tried to detonate on a jet bound for Detroit on Christmas.

This is a pretty damning list of complaints if you ask me. But let me go back to some of what I have written on this subject because I think there's an even more fundamental problem that none of these address: the politics of fear and the corrosive effect it has on our right to privacy and our ability to make informed decisions.

So before embracing the latest "terror fix", we should remember that for every specific "terror tactic" we target with a new, expensive, and often burdensome security apparatus, the terrorist's tactics themselves will change.

Risks can be reduced for a given target, but not eliminated. If we strip searched every single passenger at every airport in the country, terrorists would try to bomb shopping malls or movie theaters.

The likelihood that I'll get hit by lightning in one year is 500,000 to 1 while the odds I'll be killed by a terrorist on a plane if I flew constantly over 10 years is 10 million to 1. Does this laughably minuscule risk warrant yet another civil liberties encroachment? Does this irrational fear of being blown up in a plane really warrant supporting wars on countries that did nothing to us, or in this case, wasting HUGE amounts of money on ineffectual security systems?

Does this "fear" warrant increasing the already long list of airline passenger indignities? Isn't suffering through long lines while being shoeless, beltless, waterless, and nail clipper-less enough? Now we've got to be digitally strip searched too?

Then there are the privacy concerns regarding how images could be stored...and just the basic guttural reaction of "screw you, I'm not letting you see me naked just so I can board a plane!" argument.

EPIC published documents in January revealing that the machines can record, store and transmit passenger scans - in contradiction to TSA claims.

Are we really to believe the government won't allow these devices to record any data when the easy "go to" excuse for doing so will be the need to gather and store evidence? What about the ability of some hacker in an airport lounge capturing the data using his wi-fi capable PC - and then filing it to a Flickr album, and then telling of its whereabouts on Twitter?

For these reasons, privacy advocates are seeking increased oversight, full disclosure for air travelers, and legal language to protect passengers and keep the TSA from changing policy down the road. Again, what's to stop the TSA from using clearer images or different technology later?

As the ACLU pointed out, "A choice between being groped and being stripped, I don't think we should pretend those are the only choices. People shouldn't be humiliated by their government" in the name of security, nor should they trust that the images will always be kept private. Screeners at LAX (Los Angeles International Airport) could make a fortune off naked virtual images of celebrities...The Bill of Rights extends beyond curbside check-in and if the government insists on using these invasive search techniques, it is imperative that there be vigorous oversight and regulation to protect our privacy. Before these body scanners become the status quo at America's airports, we need to ensure new security technologies are genuinely effective, rather than merely creating a false sense of security."

In other words, is yet another invasion of personal privacy a worthwhile trade-off for unproven protections against a terrorist threat that has a 1 in 10 million chance of killing someone over a ten year time period? To me this represents a line that I'd prefer not to cross. What's next? Cavity searches?

More on this issue to come...


Anonymous said...

I flew out of Indianapolis last Friday. (Indy has had these scanners since before last Christmas.) I politely stated I'd rather not go through the body scanner, and was told I would have to "go through special screening." I thought the body scanners were OPTIONAL? So wouldn't I go through the NORMAL screening, and not "special" screening?

I went through the metal detector and was told to stand to the side and wait. The male screener asked for a female screener for a pat-down. From the other side of the machine, the female screener ROLLED HER EYES and said loudly "Oh boy." Her sarcasm was opaque.

The pat-down that followed ensured I wouldn't need my annual Pap Smear.

I am convinced the TSA would simply prefer we go through these untested, unregulated, unsafe machines for their own convenience. They are determined to make the other "screening options" so invasive that we might find the body scanner "safer" than being molested.

I will never step through one of those machines. Not EVER. There is nothing they have done to prove I can trust these machines medically, or them with my privacy.

On the off hand, I don't find it optional to fly. My family is 2,000 miles away, and I have to move with military orders (husband is active duty). So what is my option? I MUST fly. It isn't a choice, and I'm not the only one who sees it that way.

CFC said...

Thanks for the feedback...this is very helpful, and adds another wrinkle to the arguments I've been making. Especially disturbing is your point that the way they'll essentially mandate, without saying its mandated, is to make the alternative so burdensome that it will be even more unacceptable to passengers. I can only hope that at least one, or perhaps all in unison, of the three pronged approach to challenging the use of these machines (i.e. through the courts, through the legislature...least likely, or public opposition)will prevail in the long run. This kind of intrusion epitomizes the slippery slope argument (that's often over used...but not in this case)...and I don't want to even think where that slope will lead if current trends continue.

Anonymous said...

I am a young female who flew out of Heathrow yesterday, on a 45 minute flight to Newcaste upon Tyne. I was randomly (I say randomly,I saw the young male security guards pointing as they chose me) selected for the body scan. I have read all about these machines and had decided I would never go through one, but when I refused I was told I would not be able to travel.
I was visibly upset and did not want to do this scan, I feel it is a total invasion of my privacy. I am a businesswoman and travel regularly, but something about this invasive process really got to me.
Well I had no option but to do the scan, but this morning I am still thinking about it and worrying that I will be subjected to this every time I fly. Privacy, health? It just all seems so over the top for the normal traveller like myself.
I do believe this will affect air travel as I will probably now take the train for this short journey from London.
Is there any official body that I can voice my concern against this available? The more passengers that disagree Im sure will be better.

CFC said...

Damn, I'm really sorry to hear this...though nothing surprises me anymore. I'm about to write a post on the recent revelations coming out about our Secret Government and growing surveillance state...let's just say these scanners are part of a much larger civil liberties crisis.

As for what you can do, I would contact The Electronic Privacy Information Center (EPIC), as it is the group suing the government, demanding an immediate stay of the body scanner program.

Here's the group website: http://epic.org/ Lillie Coney is their top person on this stuff I believe, but I would just call the main number and ask that to speak with someone involved with this issue because you had a particularly intrusive experience that you'd like to share.

And thanks for sharing this with me too...

Anonymous said...

I am 33 weeks pregnant and just flew from Chicago to Orange County last night. At Chicago, I was forced to go through the imaging machine. I asked to go through the metal detector but was scolded by all of the TSA agents present that I had to go through the scanning machine. I asked if this was an xray machine and they said that it wasn't, but IT IS!! I feel violated and now I am worried about the effects of the radiation on my unborn child.

CFC said...

As I mentioned to one of the other people that commented about their experiences, you should report what happened to you too...if to no one else than EPIC...who's pursuing legal action to challenge the use of these machines.

Anonymous said...

I'am a 35 year old female who was flying from the Phoenix airport, when I was chosen by a "few" male guards to go through this scanner. I had no idea what was going on. When I asked one of the male guards "what am I being x-rayed"? His reply to me was Yeah something like that! With a grin on his face! This is just a small part of my story. I have filed a complaint with epic. Do I have a right to feel violated? My experience was completely unprofessional!

CFC said...

I'm again very thankful to those that have shared your experiences here with me on this topic. It REALLY helps me speak to this issue with greater clarity and depth to hear first-hand stories. And yes, I of course do think you have the right to feel violated. In fact, I think its getting pretty clear from the experiences shared just on this blog, that this is part of a larger "intimidation" strategy...to make people feel stupid, silly, paranoid, or worse for objecting to the scanners. And, making people feel even more violated if they choose NOT to go through them.

Thanks again for sharing, and thanks even more for sharing it with EPIC. This is what its going to take...we cannot allow fear to overrun common sense, let alone our civil liberties.

Anonymous said...

I flew out of Boston Logan a week ago. I didn't even know these machines existed. I was completely embarrased. It was all guy workers, and I stood there for a good minute- everyone else was about 5-10 seconds. I thought I HAD to. I was never given the option for an alternative - which i would have taken. I feel extremely violated. I've suffered from body dysmorphic disorder, and for someone with this, these new machines are extremely traumatizing.

Anonymous said...

My Sister sent me this site due to my experience yesterday, my flight was out of Columbus, OH. While going through the screening process, I was "chosen" for the body scan along with the women in front of me. I told the male screener I would like to opt out, which I thought was my right, but I suddenly was treated as if I were a suspect. The whole ordeal took about 15 minutes, by the time 2 female screeners were available, took me into a private area and one performed the pat down as she explained the procedure. The more I read about the machines, as embarassing as it was, I would probably choose to opt out again.

CFC said...

Thanks for sending your experience along. If nothing else, I think an obvious trend is starting to materialize here...and what readers are telling me is now being experienced by more and more passengers. These stories are just starting to penetrate the media, but only just barely.

Your comment comes at a good time too, as just over a week ago I posted yet more news on this issue: http://consumercal.blogspot.com/2010/10/pilot-protests-digital-strip-search.html

and, I'm going to try and get a post up today as well...because I've found a few more stories that corroborate your experience.

Thanks again!


Anonymous said...

Is there a petition to sign to get this stopped!!!
I refuse to expose my body to cancer causing radiation.
I met a girl in the Las Vegas airport on Friday, she was so upset, she told me about how the TSA agents groped her and touched her crotch because she wouldn't go through the body scanner. This is insane, Obama and his regime is bringing America down fast, it must be stopped! I mean come on, what major incidents have occurred since and before 9/11 that really calls for all of this security?

CFC said...

Yes, EPIC has been really leading the way on this issue, and have been petitioning Janet Napolitano on the subject: http://privacycoalition.org/stopwholebodyimaging/

See my last big post on the subject from last week: http://consumercal.blogspot.com/2010/11/airport-digital-strip-searches-or.html

I'm also putting up another today, as there have been some breaking news that indicates a growing resistance.

I wouldn't necessary pin this all on Obama though. While I have been gravely disappointed by the fact that he has largely followed the Bush Administration's privacy and civil liberties squashing policies, these machines were begun under prior leadership, and in fact, Michael Chertoff, head of DHS under Bush, is the lobbyist for the major manufacturer of them (so its about $$$$ too). Regardless who started it and who's to blame, you're correct that Obama is moving forward...and we should all, left and right, oppose it.