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Electronic privacy group continues legal challenge to TSA scanning

EPCI's Marc Rotenberg

The Electronic Privacy Information Center (EPIC) wants a federal appeals court to take another look at a legal challenge to the TSA’s use of electronic body scans because an earlier court ruling was flawed.

EPIC has said TSA’s body scans aren’t effective and violate the privacy rights of passengers. A ruling by the U.S. appeals court in Washington, DC, in July only partially upheld the group’s constitutional challenge to the scans. That decision found that the TSA’s “Advanced Imaging Technology” (AIT) scanners could detect “liquids and powders.” EPIC said the scanners don’t detect those substances. The group also said the court ruled that Transportation Security Officers are engaged in “law enforcement activity” even though TSA is not a law enforcement agency. The ruling also held that the agency’s deployment of AIT technology for primary screening in U.S. airports does not violate the Fourth Amendment or the Video Voyeurism Prevention Act. EPIC contends it does both.

"The court overstated the effectiveness of the body scanner devices and understated the degree of the privacy intrusion to the travelling public," said EPIC President Marc Rotenberg in the Aug. 29 re-hearing petition filed at the United States Court of Appeals in Washington.

EPIC's new petition challenged the court's finding that the devices detect “liquid and powders," which was never established and was not claimed by the government, said the group. EPIC also argued the court wrongly concluded that the TSA is not subject to a federal privacy law that prohibits video voyeurism.

EPIC is pursuing related litigation on the government's deployment of mobile body scanners.

The group said the TSA’s use of body scanners qualifies as a case of “exceptional importance” -- which is a key to getting the July ruling reviewed -- because it affects so many people. “There is no agency practice, subject to the Fourth Amendment, that has in recent memory attracted more public criticism, generated more controversy, or affects a larger number of individuals,” said the group.


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