AmyJo

So tomorrow EPIC will be in Court of Appeals trying to shut down
the body scanners. Is anyone following this closely and can
explain the issues to the non lawyers here?

Ari

I'll give one nugget:

The case is before Circuit Judges Ginsburg, Henderson and Tatel.

You may recall that Judge Ginsburg is the Judge who compared the TSA to the Keystone Kops in a concrrence to his own opinion for the court. The TSA (DHS, actually) was permitted to file some SSI sealed ex-parte along with sensitive copyrighted information. Seems they want to keep those naked pictures private. I will read more and update this post.

There are hundreds of pages, but I'll try to flesh out the issues and post a brief summary here . . . EPIC's website has a lot of the documents posted:
http://epic.org/privacy/body_scanner...n_of_body.html

(It should also be noted that Judge Ginsburg wrote the recent cracker-jack opinion barring the use of GPS tracking of individuals without a warrant, an opinion divergent from the Courts of Appeals for the 2nd, 7th and 9th Circuits, virtually gauranteeing Supreme Court review of this issue: http://www.eff.org/files/filenode/US...d_decision.pdf)

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

EPIC is asking the Court to resolve the following issues:

1. Whether the TSA and respondents violated the Administrative Procedure
Act, 5 U.S.C. § 553(e), in failing to act on EPIC’s May 31, 2009 petition (“the
First EPIC Petition”), which urged a public rulemaking on a substantial change in
agency practice that made body scanners the primary screening technique in U.S.
airports;

2. Whether the TSA and respondents violated the Administrative Procedure
Act, 5 U.S.C. § 553(e), in issuing the May 28, 2010 order refusing to process
EPIC’s April 21, 2010 5 U.S.C. § 553(e) petition (“the Second EPIC Petition”);

3. Whether the DHS Chief Privacy Officer breached her statutory duty, 6
U.S.C. § 142, to prevent agency technology from eroding privacy protections by
sanctioning the nationwide deployment of FBS devices in tandem with a
systemized collection of airline passengers' personal information;

4. Whether the DHS Chief Privacy Officer failed to uphold her statutory duty,
6 U.S.C. § 142, to conduct adequate Privacy Impact Assessments when she
neglected to identify and report numerous privacy risks in the design of airport
body scanners;

5. Whether the Chief Privacy Officer failed to uphold the same statutory duty
when she failed to conduct any formal assessment once the DHS entered a new,
unpublished rule effectively subjecting all air travelers to FBS devices;

6. Whether the TSA and respondents violated the Fourth Amendment
reasonableness requirement by routinely subjecting all air travelers to a uniquely
invasive, suspicionless, and ultimately ineffective search of the most private areas
of the human body;

7. Whether the TSA and respondents violated the Privacy Act by creating an
indexed system of records containing air travelers' personally identifiable
information without publishing a system of records notice in the Federal Register;

8. Whether the TSA and respondents' systematic rendering of detailed, thre-edimensional
images of air passengers' naked bodies violates the Religious Freedom
Restoration Act by substantially burdening the free exercise of religion of those
airline passengers who embrace sincerely held religious beliefs requiring the
preservation of modesty;

9. Whether the TSA and respondents violated the Video Voyeurism Prevention
Act by systematically capturing images described under the Act as constituting the
"private area of the individual," including "the naked or undergarment clad
genitals, pubic area, buttocks, [and] female breasts," and which would clearly
offend any meaningfully definition of a reasonable expectation of privacy.
18 U.S.C. § 1801(b)(3).

ElizabethConley

Thanx Ari,

and thanx for asking AmyJo.

The suspense is absolutely killing me. Tomorrow I'll be like a kid on Christmas morning, which means the inevitable delays will drive me bonkers!

If you're willing to bring us updates and insights Ari, you'll enjoy my continued gratitude. That and 50 cents will no longer buy you a cup of coffee, but I hope you'll humor me anyway!

Ari

I will continue to update that post as I sort through those documents. If anyone hosts a website, I am happy to email documents not posted by EPIC so that they may be posted on that site. Included would be the letter from the DHS suggesting closed oral argument for certain SSI issues.

I wouldn't expect a ruling so quick . . . and I will not be at oral arguments.

jordanmills

Between this, the state-level laws in the process of being enacted, and the TSA employees caught flagrantly breaking other laws, the TSA is about to find itself in some deep crap.

Bungnoid

While I will be keeping my fingers crossed for a favorable outcome in the EPIC lawsuit, here are some recent articles that take a little wind out of my sails:

http://www.wired.com/threatlevel/2011/02/scanners-part1

http://www.independent.org/blog/index.php?p=9580

ElizabethConley

I feel your pain. I've read U.S. vs Davis over and over again, trying to understand it to the best of my ability. (It's the court case from which the most depressing ruling comes.)

I've got only one comforting thing to say about that case. OK 2.

1. Davis had a gun in his briefcase. Nobody pawed at his crotch, peered in his undies or irradiated him. They just opened his briefcase and there it was - in plain sight. The didn't even rifle through his correspondence, lift or shift anything within the briefcase to find it.

2. It's just one case, not a whole slew of 'em.

Buck up.

Oh, and here it is:

http://openjurist.org/482/f2d/893/united-states-v-davis

Most links that purport to lead to U.S. vs Davis lead elsewhere instead. HeckifIknow Y, they just do. If you want to read it, read it. Maybe you'll feel better. Maybe you'll feel worse.

Ari

There is an interesting argument to be made regarding the "least intrusive means" concept we see from time to time in court opinions: X-rays are more intrusive than MMW; naked images are more intrusive than ATR.

It seems like the Court could rule MMW with ATR constitutional and the Chertoff RapeScam machines unconstitutional.

ElizabethConley

I can see why that might be the case, but I still have safety concerns, even with the MMW. I want the equipment tested by several separate teams of experts, and I want their peers to review their findings. Then whatever research results they come up with, I'll trust.

What's been released thus far doesn't suffice for me.

Since when has a search actually been a potential health risk? Is there any legal precedent applicable to a search that might be dangerous to the subject's health? What about the operator's health? Is it safe for the operators to be around that equipment for hours at a time, several days a week?

ElizabethConley

Today's the big day.

Call your bookie and place your bet on the TSA's shysters finding a way to delay!

EZ money

lkkinetic

Any news yet?

ElizabethConley

This is all I've got thus far:

Focusing public attention on emerging privacy and civil liberties issuesLatest News - March 10, 2011

DHS: We Have the Authority to Routinely Strip-Search Air Travelers
The Department of Homeland Security told a federal court that the agency believes it has the legal authority to strip search every air traveler. The agency made the claim at oral argument in EPIC's lawsuit to suspend the airport body scanner program. The agency also stated that it believed a mandatory strip search rule could be instituted without any public comment or rulemaking. EPIC President Marc Rotenberg urged the Washington, DC appeals court to suspend the body scanner program, noting that the devices are "uniquely intrusive" and ineffective. EPIC's opening brief in the case states 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," and that such a change in policy demands that the TSA conduct a notice-and-comment rule making process. The case is EPIC v. DHS, No. 10-1157. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology.

from here: http://epic.org/

ElizabethConley

Up to the minute:

(not that I'm bird-dogging or anything)

EPIC to Testify at Congressional Hearing on TSA Body Scanner Program
The Subcommittee on National Security of the House Committee on Oversight and Government Reform will hold a hearing on "TSA Oversight: Whole Body Imaging" On March 16, 2011. EPIC President Marc Rotenberg has been asked to testify. The hearing is expected to explore the privacy impact, health concerns, and questions of effectiveness that have been raised about the program. Committee Chairman Jason Chaffetz (R-UT) introduced legislation in 2009 that passed the House, 310-108, that would prevent the TSA from deploying body scanners as the primary screening technique in US airports. EPIC held a public conference earlier this that explored public objections to the TSA program. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology.

MDtR-Chicago

Court Unlikely to Halt ‘Nude’ Airport Body Scanners

Doesn't seem to be going very well.

(And the tone of the article makes it seem like the judges think this is a big joke.)

jordanmills

That doesn't sound like very professional conduct from those judges.