The Invasion of the Body Scanners

By William Fisher

More than thirty privacy and civil liberties organizations have filed a formal petition with the Department of Homeland Security (DHS), urging the federal agency to shut down the use of ‘full body scanners’ (FBS) at the nation’s airports.

At a press conference, Marc Rotenberg, President of the Electronic Privacy Information Center (EPIC), one of the signatories to the petition, said, "There is no question that the body scanner program should be shut down. This is a government boondoggle -- expensive, ineffective, and offensive to Constitutional rights and deeply held religious beliefs."

Last year, the groups asked DHS Secretary Janet Napolitano to give the public an opportunity to comment on the proposal to expand the body scanner program. She rejected the request. Since that time, the groups charge that evidence has emerged that “the privacy safeguards do not work and that the devices are not very effective.”

The petition states that the body scanners are not effective and are not designed to detect the type of powdered explosive that was involved in the December 25 “underwear bomber” incident. The petition also states that the privacy safeguards do not work and that the body scanners violate religious beliefs, principally among Muslims.

Despite concerns over costs and benefits, privacy, reliability and safety of airport body scanners, the federal government plans to deploy 500 advanced imaging technology units this ear, roll out 500 more in 2011 and operate a total of 1,800 units by 2014, according to recent testimony last to the House Transportation Security and Infrastructure subcommittee.

The plan represents a "more than two-fold increase from the initial planned buy of 878 units," noted the Government Accountability Office's Steve Lord, director for Homeland Security and Justice issues. "Second, the Transportation Security Administration now plans to use this technology as a primary rather than secondary screening measure."

A signatory to the petition, Chip Pitts, president of the Bill of Rights Protection Committee, told IPS, “The full body scanners fall into the same misleading ‘techno-utopian’ mindset that focuses on the symptoms rather than the causes of terrorism and assumes that some new surveillance technology will somehow eliminate all risk of terrorist incidents.”

He explained: “What happens instead is that companies push for and the government buys technology that merely fights the last war, produces new intrusions to fundamental freedoms like privacy, the presumption of innocence, and freedom from religious or other discrimination, while yielding only faux security instead of the genuine security promised. In the meantime, as Huxley warned in Brave New World, the population becomes used to the new surveillance methods (such as these digital strip searches) that normalize invasions of dignity and serve mainly to enhance government control of the citizenry.”

Pitts adds, “These body scanners weren’t designed for nor will they pick up powdered explosives of the sort used by the underwear bomber, but the misleading illusion that they work will distract us from following genuine leads and damage the genuine human security that comes only from respecting rights and meeting the main security challenge: changing the policies that are the root causes of terrorism.”

The “underwear bomber” is a young Nigerian who attempted to blow up a Northwest Airlines flight as it was descending into Detroit from Amsterstam on Christmas Day last year, concealing an explosive device in his under shorts.

The signatories to the petition describe body scanner systems as "uniquely intrusive, subjecting all travelers to an unreasonable search in violation of the Fourth Amendment.” They also say that the DHS “failed to comply with the Privacy Act when it did not inform the public about this new system that would collect personal information.” And they charge that the DHS Chief Privacy Officer violated the law when she approved the program.”

The group also contends that documents obtained by EPIC under the Freedom of Information Act “also appear to refute the agency's claims that the devices do not store and record images and that the public does not object to the program.”

The group cited a number of comments from unidentified passengers. “One traveler commented, ‘I am outraged and angry that what was supposed to be a ‘pilot’ for the millimeter scan machines has now become MANDATORY. Other fliers described the devices as ‘a disgusting violation of civil liberties and privacy,’ ‘for a bunch of peeping toms,’ ‘unconstitutional,’ ‘intrusive and ridiculous’ and ‘a joke.’ ”

The organizations signing the body scanner petition include the Electronic Privacy Information Center (EPIC), the Asian American Legal Defense and Education Fund (AALDEF), the Bill of Rights Defense Committee (BORDC), the Council on Islamic-American Relations (CAIR), the Center for the Study of Responsive Law (CSRL), the Liberty Coalition, and Public Citizen.

The petitioners charge that “Deployment of Full Body Scanners in US airports, as currently proposed, violates the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), the Privacy Act of 1974 (Privacy Act), and the Administrative Procedures Act (APA).”

The petition says, “The FBS program effectively subjects all air travelers to unconstitutionally intrusive searches that are disproportionate and for which the TSA lacks any suspicion of wrongdoing. The FBS Program also violates the RFRA because it requires those of sincerely held religious beliefs to be subject to offensive intrusions by government officials. The program violates the Privacy Act because the system gathers personally identifiable information—a detailed and unique image of the human body easily associated with a particular airline ticket—yet the TSA failed to publish a System of Records Notice. The TSA Chief Privacy Office violated its statutory obligations to ensure that new technologies ‘sustain and do not erode’ the privacy of Americans when it effectively approved the program.”

EPIC’s Rotenberg said at the press conference that he would consider FBSs for secondary, but not primary, screening.