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FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.
Whole body image scanning machines are designed to peer through clothing and capture three-dimensional images of individuals as if they are completely undressed. This raises a lot of questions about the impact of a citizen's civil liberty rights and a citizen's privacy interests.
The Electronic Privacy Information Center (EPIC), a public interest research organization that monitors federal actions to determine their impact on civil liberties and privacy interests, has wanted to find out how whole body imaging machines have been used on US citizens by the federal government.
Accordingly, EPIC submitted a Freedom of Information of Act (FOIA) request to the Department of Justice (DOJ). Because the DOJ did not provide the requested information, EPIC has filed a lawsuit in United States District Court for the District of Columbia.
In its complaint, EPIC notes that the U.S. Marshals Service (USMS) is responsible for the protection of the federal judiciary. EPIC specifically alleges that the USMS uses whole body image scanning technology to screen visitors at one federal court already. According to the complaint, the whole body systems operated by the USMS are the same as such systems used by other government entities, including systems the federal government intends to use to screen all air travelers in airports in the United States.
EPIC alleges that the U.S. House of Representatives passed a bill earlier this year that would limit the use of whole body imaging systems in airports. The bill apparently prohibits the use of this technology for primary screening purposes in airports. The bill was referred to the Senate. Nevertheless, EPIC alleges that the Transportation Security Administration (TSA) announced plans to install in excess of 150 more whole body imagining machines in U.S. airports.
EPIC wanted to understand the government's actual and intended use of whole body image scanning on U.S. citizens. Accordingly, EPIC submitted a request to the DOJ under the FOIA seeking agency records reflecting whole body images taken of citizens, contracts entered with respect to this technology, documents relating to the specifications of the technology, complaints regarding use of the technology, and other information. Under FOIA, the federal government must provide requested information relating to "what the government is up to" (as held by courts) so long as a specific statutory exemption does not bar disclosure.
The DOJ did not make a determination on EPIC's FOIA request, as alleged by EPIC, so EPIC initiated one and then another administrative appeal. Because the administrative appeals did not cause the release of any requested information, EPIC ultimately filed a federal lawsuit under FOIA. EPIC argues in its lawsuit that the DOJ did not conduct an adequate search for responsive records, violated the timelines set forth in FOIA, and still has not produced any of the information sought relating to whole body imaging.
EPIC specifically seeks a court order requiring a full search of responsive records within five working days of the order and production of records within ten business days of the order. EPIC also requests its attorney's fees and costs.
While the government apparently seeks transparency of U.S. citizens when it comes to the potential imaging of whole bodies, rendering them naked to the imaged view, the DOJ does not appear to have been very transparent at all in response to EPIC's FOIA requests that seek to understand the government's plans in this imaging realm. Perhaps EPIC's lawsuit will cause the DOJ on its own to come forward with the requested information, and if not, a federal judge might require disclosure.
While it would not be surprising for actual whole body images to be withheld on privacy grounds, other information relating to whole body image plans could be very relevant for an informed citizenry to understand "what the government is up to."
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at firstname.lastname@example.org. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.