The Freedom Bulletin

A week ago, the Electronic Privacy Information Center (EPIC) filed its opening brief in its lawsuit against the Department of Homeland Security (DHS) over its use of full-body scanners, AKA strip-search machines.

EPIC, Chip Pitts (lecturer and former president of the Bill of Rights Defense Committee), Bruce Schneier (security technologist and author), and Nadhira Al-Khalili (lawyer for the Counsel on American-Islamic Relations) are suing Homeland Security Secretary Janet Napolitano, Homeland Security Chief Privacy Officer Mary Ellen Callahan, and their department in the hopes of putting a stop to the strip-search machines until a proper policy can be created, with hearings and input from the public. This is actually an appeal from EPIC’s earlier motion for an emergency stay, which was sadly denied. The appeal is being heard in the D.C. Circuit Court of Appeals, and the DHS’s brief is due on December 15.

In this brief, EPIC accuses the DHS of violating several laws, including the Administrative Procedure Act, Privacy Act, Religious Freedom Restoration Act, Video Voyeurism Prevention Act, and most importantly, Fourth Amendment:

“Petitioners object to Respondents’ decision to make Full Body Scanners the primary means of screening in US airports. That decision disregarded the Fourth Amendment, as well as federal laws that ensure agency accountability and help safeguard privacy and religious freedom. Respondents have broad authority to undertake screening of travelers at airports in the United States, but such authority is not unbounded.”

I am not done reading the brief yet, but from what I’ve read so far, I can tell you that it is a beautiful, beautiful thing. No matter what happens in court, I am proud to be from the same country as the people who filed it.

In another awesome development, the Libertarian Party formally endorsed the lawsuit! Gotta love them:

“The TSA should end the strip-search machine program immediately. We’ve reached the point where our government has no qualms about humiliating us. Everyone who cares about civil liberties should be outraged that the Obama administration has shown no respect for travelers’ privacy or their right to be free from unreasonable searches. The fact that I want to travel on an airplane does not make me a threat, and it does not allow anyone to conduct a warrantless search under my clothing. The Obama administration apparently agrees with the neoconservative philosophy that there are no limits on government power in the areas of security and terrorism.”

Full Brief (PDF)

I don’t know how I missed this! The Electronic Privacy Information Center (EPIC) is suing the Department of Homeland Security (DHS) over full-body scanners. On July 2, EPIC filed a petition for review and a motion for emergency stay in the District of Columbia Court of Appeals to halt the use of the machines, which show pictures of people’s naked bodies underneath their clothes.

EPIC contends (in my opinion, correctly) that the use of strip search machines as a primary method of screening – all air travelers are required to undergo them or an equally invasive pat down – violates the following laws:

• Administrative Procedures Act
• Privacy Act
• Religious Freedom Restoration Act
• Fourth Amendment

In other naked machine news (or not so new news), Homeland Security Secretary Janet Napolitano announced two weeks ago that full-body scanners will be coming to even more airports, “strengthening security at airports throughout the nation while creating local jobs.” And taking away everyone’s privacy and dignity…but I guess Janet doesn’t care about that.

Also, as of yesterday, it turns out that U.S. Marshals have been saving and storing tens of thousands of naked images from a full-body scanner in a Florida courthouse, and that the TSA requires all of its scanners to have the capability of storing and transmitting images! Last summer the TSA said that “scanned images cannot be stored or recorded.” This makes me wonder what else they could be lying about.

Between EPIC’s lawsuit, the Virginia anti-Obamacare lawsuit going forward, and Proposition C in Missouri, this is turning out to be a good week for liberty across the country.

Read all the motions and related news articles at EPIC’s website. Thank you, EPIC, for all that you do to defend liberty.

Last June, the TSA wrote a letter (PDF) in response to the Electronic Privacy Information Center’s concerns about the lack of privacy of whole body imaging (virtual strip searches) in airport security screening. The TSA made some beyond preposterous claims in attempting to rebut EPIC’s (very reasonable) accusations. In light of the despicable new security procedures in the wake of the Christmas Day bombing attempt, I thought this would be a good time to go over and refute the TSA’s arguments.

At the time the letter was written, whole-body imaging machines, which see through people’s clothes to create images of their naked bodies, were used in 19 airports in the US, including as primary screening in 6 airports, which means that ALL air passengers are forced to go through the machines. Now they are going to become even more prevalent.

First, the letter reads, “TSA is committed to preserving privacy in its security programs and believes strongly that the WBI program accomplishes that through a screening protocol that ensures complete anonymity for the individual undergoing the WBI scan.”

The TSA says that the following things are true:

• The officer who views the naked image is located in a windowless room, away from the individual being scanned, so they don’t see the individual in person, but only their naked body
• Cameras and cell phones are not allowed in the viewing room
• The naked pictures cannot be stored
• The person’s face is blurred, so that only their naked body, not their face, is visible in the image
• The TSA has been educating the public about virtual strip searches through signage, its blog, its website, and demonstrations

Their main argument seems to go like this: Because the above things are true, forcing people to have their nude bodies examined in order to board an airplane does not violate anyone’s privacy rights. The TSA even writes that “these privacy protections are robust.”

This argument is ridiculous. The objection that liberty-respecting people have to virtual strip searches is that the TSA looks at people’s nude bodies. None of the above facts make this not true.

I have no problem interacting with people face to face. I have no problem with people seeing my face. I have no problem with people photographing me or storing pictures of me. What I have a problem with is being required to expose my nude body in order to board an airplane.

None of the TSA’s supposed privacy safeguards address the way in which whole body imaging takes people’s privacy away. Requiring people to be virtually strip searched in order to board an airplane completely and utterly takes away every iota of privacy and freedom that people have. Whether people are seen naked by someone physically near them or far away is irrelevant. How many people see them naked is irrelevant; one is equally bad as a million. Whether people’s faces are visible is irrelevant. So is whether the images are stored.

As an analogy, suppose that someone got raped, and they happened to be wearing a mask, so the rapist did not see their face. Also suppose that no pictures were taken of the rape. Does this mean the person wasn’t raped?

Didn’t think so.

But according to the TSA’s argument, the person wasn’t raped, or at least they have no reason to complain about what happened to them, just as people apparently have no right to complain about being strip searched, as long as their faces aren’t visible and the images aren’t stored.

This argument is terrible. Any agency that forces even one innocent person to undergo whole body imaging has no respect for privacy whatsoever. The TSA has no right to use whole body imaging as a primary method of screening at any airport, and they have no business claiming to be “committed to preserving privacy.” Anyone who says that forced strip searches could ever have “robust” privacy protections is either dishonest or delusional.

Great news! People are finally fighting back against the naked machines! The Electronic Privacy Information Center launched a campaign today to suspend the use of whole body imaging devices – in other words, devices that show people’s naked bodies – as a method of airport security. Additionally, Congressman Jason Chaffetz (R-Utah) introduced legislation in April to ban the naked machines.

Sadly, opposition to the naked machines arose only after the TSA reversed its policy of using them only on passengers who set off metal detectors or were randomly selected for additional screening. To an inexplicably small amount of media coverage, the TSA announced it is now planning to use the naked machines on all passengers, instead of metal detectors! In other words, if the TSA gets its way, people will have to have their naked bodies examined in order to board an airplane! This is more immoral, unconstitutional, and un-American than words can convey.

More people should have opposed these virtual strip searches long ago, but it’s better late than never. Needless to say, I enthusiastically support EPIC’s and Chaffetz’s campaigns against the naked machines. I also now have a second-favorite Congressman (after Ron Paul, of course).

I will blog back with a more detailed entry on why I oppose the naked machines and many of the TSA’s other policies.

For more information, see EPIC’s whole body imaging technology page.