EPIC Class Action Lawsuit To Suspend Body Scanner Use To Begin Oral Arguments March 10, 2011 in Federal Court

The United States Court of Appeals for the District of Columbia Circuit has scheduled oral argument in EPIC’s case, No. 10-1157, against the Department of Homeland Security. The court set a March 10, 2011 date for the parties to present oral argument before the Court. EPIC filed suit against the Department of Homeland Security to suspend the body scanner program because it is “unlawful, invasive, and ineffective.”

In its opening brief, EPIC argued that the federal agency has violated the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment.

The brief also argues that DHS scanners are ineffective and will not detect explosives. On December 25, 2009, Umar Farouk Abdulmutallab boarded a United States-bound plane with a powered explosive hidden on his person that went undetected by screening procedures, even though he departed from an airport where body scanners were installed. AR 66.  Following this incident, the DHS accelerated its plan to make body scanners the primary screening technique in U.S. airports.  

In January of 2010, the GAO released a report questioning if the body scanners would have been able to detect the powdered explosive weapon used in the December 25 attempted attack.  The GAO requested an independent survey to be conducted on this topic. The results of this study are not available to the public.

The brief also questions the safety of full body scanners.  For example, on August 6, 2010, three U.S. Senators objected to the DHS’s expansion of the airport body scanner program. In a letter to DHS Secretary Janet Napolitano, Senators Collins (R-ME), Burr (R-NC), and Coburn (R-OK) asked “why the Department continues to purchase this technology when legitimate concerns about its safety appear to remain unanswered.” Letter from Senators Collins, Burr, Coburn to DHS Secretary Janet Napolitano (Aug. 6, 2010), available at www.epic.org/redirect/090110senatorsletter.html. The Senators noted that “the issue of radiation associated with the backscatter x-ray AIT machines has not been adequately addressed by TSA.” They urged the agency’s Chief Medical Officer, working with independent experts, to conduct a review of the health effects on travelers and airport personnel.

As of May 7, 2010, Respondent has deployed fifty-eight body scanners in twenty-four airports across the country. By the end of December of  2010, 492 units are scheduled to be deployed in the United States, and an  additional 500 units in 2011. 

For more information, see EPIC: EPIC v. DHSand EPIC: Whole Body Imaging Technology.