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...