EPIC Appeals FOIA Decisions Concerning Body Scanner Information

Electronic Privacy Information Center – April 16, 2013

EPIC has filed appeals in two Freedom of Information Act cases seeking documents related to airport body scanners from the Department of Homeland Security and the Transportation Security Administration.

EPIC filed FOIA requests with the agencies seeking records related to radiation risks from body scanners and the threat detection software the machines use.

The TSA is currently developing formal rules for the use of body scanners in response to a court order in one of EPIC’s previous cases.

Body scanners allow routine digital strip searches of individuals who are not suspected of any crime.

For more information, see EPIC: Radiation Risks lawsuit and EPIC: ATR lawsuit, and EPIC: Suspension of Body Scanner Program.

Related articles

• Judge: DHS Must Release Body Scanner Safety Reports (reason.com)
• Letter From a Screener: So We Found a Suicide Bomber With The Full Body Scanner: Now What? (takingsenseaway.wordpress.com)

TSA Once Again Considering Using Commercial Data To Profile Passengers

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project | January 11, 2013

The TSA has issued a “Market Research Announcement” in which the agency expresses a desire to expand its Pre-Check whitelist program by allowing private companies to carry out risk analysis of Americans that would determine whether they are “trusted” enough to participate in the trusted traveler program. This would be a major step toward turning the agency’s Pre-Check whitelist into the insidious kind of passenger profiling system that was proposed under the Bush Administration in the wake of 9/11, and a confirmation of our longstanding warnings that the logic of the risk-assessment approach to security will drive the government toward the use of more and more data on individuals. It would be the most significant of the new initiatives the TSA is looking at this year.

Currently, under Pre-Check, travelers who have attained a certain level within the frequent flier programs of six airlines can apply for the program by providing the government with certain information and, if they are accepted, receive access to expedited security lines. Department of Defense personnel and those with certain security clearances may now also join—and future expansions are inevitable. Although it is currently limited in scope, we have been warning that this kind of program points us down the road of engaging in background checks and discriminatory profiling of passengers. The concept raises knotty questions about fairness; we don’t know who is approved for this program and who is rejected, and based on what data, or what criteria for evaluating that data.

Defenders of Pre-Check point out that it is voluntary. However, as the agency explicitly states in this new document, “TSA desires to maximize appropriate participation in expedited screening initiatives.” In short, it hopes to lighten the screening load as much as possible by enrolling as many people as it can in Pre-Check. That means that ultimately, we face the prospect of a two-class airline security system, or even a system in which simply everyone has a Pre-Check ID, and the hapless group who can’t get one become a security underclass. Then the Pre-Check is adopted for all kinds of other purposes by piggybacking organizations, and like a “voluntary” credit card, it becomes impossible to fully participate in American life without one, and those who are shut out—and they won’t know why—face all kinds of obstacles and disadvantages.

As I discussed in this post, the Bush program, called CAPPS II, would have tapped into commercial data sources to perform background checks on every air passenger, and crunched that data to produce a profile of each traveler’s “risk to aviation.” The initial vision seemed to be to measure individuals’ “rootedness in their community,” measuring such things as how long a person has lived at their current address, held their current job, held a credit rating, etc. Among the numerous problems with this concept, it would have been enormously discriminatory in its impact (African-Americans, for example, tend to move more often than whites), and would have been grossly ineffective in spotting terrorists. (As Bruce Schneier has long pointed out, the danger is that to the extent you exempt some groups from security measures, you open up a pathway for terrorists to join or recruit their way into the program.)

We and others fought this terrible idea, and over several years of battles in Congress and the media, it was renamed “Secure Flight” and basically reduced to watch list checks. A victory of sorts—although the watch list system underpinning Secure Flight continues to be a mess.

Now it is clear that our concerns about Pre-Check sliding back towards some kind of CAPPS II-like profiling system have been warranted. In particular, the agency appears never to have lost its fixation with partnering with private-sector data aggregators to evaluate American citizens. The TSA writes:

TSA is particularly interested in techniques that … use non-governmental data elements to generate an assessment of the risk to the aviation transportation system that may be posed by a specific individual, and to communicate the identity of persons who have successfully passed this risk based assessment to TSA’s Secure Flight.

As I understand it, the concept here is that a company such as a data broker would sift through the enormous volumes of data they store on Americans and come up with a proposed algorithm for judging “the risk to the aviation transportation system” of any given individual. TSA would examine that algorithm, and upon the agency’s approval, the company would be authorized to sell Pre-Check memberships using that algorithm applied to its own data.

For now, the TSA says it “is seeking white papers that successfully demonstrate sound, well-reasoned concepts … to identify ‘known travelers’ pre-screened to a high degree of confidence.” The agency says it wants to allow “entities latitude to do what makes the most sense for them”:

TSA will specify a few common core requirements for process and algorithm content, while encouraging innovation by allowing participating entities to include additional elements in their algorithms as they see fit (as long as they are legal). These hybrid algorithms would have to meet certain performance criteria, described below.

Those criteria include:

• An enrollment process that is convenient and user friendly
• A proposal that “presents an effective process for gathering required personal information from potentially large numbers of prospective enrollees”
• Handling travelers’ personal information with various security and privacy safeguards
• “Has identified and obtained access to specific sources of current, accurate, and complete non-Governmental data that can be used to support effective screening of prospective travelers”
• An algorithm “that produces dependable results”

The agency outlines a three-phase process for turning these white papers into functioning part of our security system. Phase 1 (30 days) is selection of promising submissions, phase 2 (45-60 days) is prototype implementation, and phase 3 (4-6 months) will be live prototyping on actual passengers at an actual airport.

Major problems

Aside from the fundamental effectiveness questions of this concept, there are a number of major problems with it from a civil-liberties point of view:

• Unfair effects. It is likely to have an unfair impact on the American public. As I mentioned above it could easily be discriminatory in its application, or otherwise unfair depending on the data sources used. For example, see this story about a man having problems with his credit score precisely because he had always been careful not to go into debt. The data aggregators are subject to no rules regarding data quality, and their databases are rife with errors, as are the credit ratings agencies’ (despite their being subject to some regulations).

• Secrecy. We probably won’t even know about such unfair effects because the system will be wrapped in secrecy. The TSA’s document specifies that “The specific sources and types of information employed for pre-screening purposes under this initiative may not be publicly disclosed.” It also contains a long section specifying that any private partners of the TSA will be subject to the agency’s Sensitive Security Information (SSI) rules.

• Private-sector delegation. Delegating security assessments to a private company raises significant issues. We have always believed that it’s a foolish idea to start building an algorithm-based system for “rating” Americans on their security “trustworthiness,” which is then used to curb people’s rights (such as the right to travel). If we must have such ratings performed, that would at least be an inherent law enforcement function. We shouldn’t have private, profit-oriented companies making those designations, any more than such companies should be deciding who to prosecute. Having private companies make the ratings, and the government acting upon them, may be pretty close to the worst of all worlds. In addition, much of the corporate world operates on relationships and favors—not to mention money; it’s not clear how the TSA would regulate these companies to ensure they won’t engage in corruption or abuse or systematic bias when deciding who can get a Pre-Check pass. Especially given that the TSA won’t routinely have access to the underlying data.

• Access to data. However, the agency does state that while it won’t “generally” access the personal information about an individual used by a company, it may do so during audits. Also, the “results of the pre-screening process” will be shared with the TSA “upon request”; it’s not clear to me what the agency means by “results” here.

Ultimately, the core problem with Pre-Check remains: it is (as I said here) caught between two possibilities: collecting so little information that it’s useless as a security measure, or so much that it is scarily intrusive. The TSA wants to take a long stride toward the latter. True, by outsourcing the data-crunching function to a private company, the agency won’t be collecting the information itself. That certainly ameliorates some of the privacy problems with the concept—but if anything worsens the other concerns, such as fairness, accuracy, due process, and the role of for-profit companies in providing what are essential government functions. Thwarted in its efforts to tap private databases a decade ago, the agency seems to be edging back toward that concept via a classic Surveillance-Industrial Complex strategy.

Federal Judge Slams Obama Administration for Trying to Dismiss No-Fly List Case in Secret

By Noel Brinkerhoff | AllGov | December 26, 2012

The Obama administration was admonished by a federal judge recently for attempting to get a lawsuit involving the anti-terrorism no-fly list dismissed using secret information.

Rahinah Ibrahim, a citizen of Malaysia who earned a Ph.D. in construction engineering and management at Stanford University, sued the U.S. government after she was prevented from flying out of San Francisco International Airport in January 2005. Transportation Security Administration (TSA) authorities informed Ibrahim that her name was on the special list that denies those suspected of terrorist ties from flying on commercial airliners.

She was arrested, handcuffed, and placed in a holding cell for two hours, but eventually told she could go. She was also told that her name was removed from the no-fly list.

The next day, however, Ibrahim learned her name had not been removed from the list. Nevertheless, TSA officials allowed her to board her flight for Malaysia. Her visa was revoked and she was denied reentry into the U.S.

Her lawsuit has slowly made its way through the federal courts. The government has tried more than once to have the litigation thrown out, claiming Ibrahim lacked the legal standing to pursue her case.

Earlier this year, the Ninth Circuit Court of Appeals said Ibrahim had the right to continue her legal fight. Still, government attorneys tried again to derail the case, this time by submitting confidential records for the judge to review, but not for Ibrahim’s legal defense to see.

Judge William Alsup objected to the government’s tactic. He wrote: “Here the government seeks to affirmatively use allegedly privileged information to dispose of the case entirely without ever revealing to the other side what its secret evidence might be.”

“In sum, only in the rarest of circumstances should a district judge, in his or her discretion, receive an ex parte argument and evidence in secret from only one side aimed at winning or ending a case over the objection of the other side,” Alsup added. “Here, the government has not justified its sweeping proposal. It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow.”

Ibrahim is currently dean of the Faculty of Design and Architecture at Universiti Putra Malaysia.

To Learn More:

Feds Blasted for Trying Dismiss Case in Secret ( by Chris Marshall, Courthouse News Service )

Related articles

• TSA creating all new watch list for Americans (rt.com)
• US Muslim placed on no-fly list is unable to see his ailing mother | Glenn Greenwald (guardian.co.uk)

New Documents: Big Sis Lied About Canceling Mobile Body Scanner Program

Homeland Security claimed it had “dropped the plans at an early stage”

By Steve Watson | Prisonplanet | August 17, 2012

Newly released documents clearly show that the The Homeland Security Department continued to pursue a mobile surveillance program, moving radiation firing body scanners out of airports and into streets and shopping malls, despite claiming it has dropped the plans altogether.

The Electronic Privacy Information Center (EPIC) yesterday released the documents, obtained under the Freedom of Information Act, showing that the DHS was still operating the program in March 2011, just two days prior to claiming it had “dropped the projects in a very early phase after testing showed flaws”.

Previous EPIC FOIA work produced records showing that the DHS is actively moving to install radiation firing scanners in all manner of public places.

The technologies include “intelligent video,” backscatter x-ray, Millimeter Wave Radar, and Terahertz Wave, and could be deployed at subway platforms, sidewalks, sports arenas, and shopping malls.

EPIC filed a specific lawsuit against the DHS for attempting to keep the program secret.

EPIC’s suit asked a federal court to order disclosure of nearly 1,000 pages of additional records detailing the controversial program – records the agency repeatedly refused to make public, despite freedom of information requests and appeals over the course of several months.

The lawsuit points to an agency under the DHS umbrella, the Science and Technology Directorate, which has released only 15 full pages of documents on the mobile scanners, whilst heavily redacting another 158 pages and withholding 983 pages of documents.

In February 2011, EPIC discovered (PDF) that the DHS had paid contractors “millions of dollars on mobile body scanner technology that could be used at railways, stadiums, and elsewhere” on crowds of moving people.

According to the documents obtained by EPIC, the Transport Security Agency plans to expand the use of these systems to peer under clothes and inside bags away from airports.

The documents included a “Surface Transportation Security Priority Assessment” [PDF] which revealed details of conducting risk assessments and possible implementation of body scanners in “Mass transit, commuter and long-distance passenger rail, freight rail, commercial vehicles (including intercity buses), and pipelines, and related infrastructure (including roads and highways), that are within the territory of the United States.”

The DHS maintained that it had discontinued the program, but refused to provide the proof, invoking several FOIA exemption clauses, ironically including one that cited “invasion of personal privacy”.

EPIC also noted that the DHS has actively deployed “mobile body scanner technology in vans that are able to scan other vehicles while driving down public roadways.”

“These vans, known as ‘Z Backscatter Vans,’ are capable of seeing through vehicles and clothing and routinely store the images that they generate.” EPIC’s lawsuit notes.

As we previously reported, while the focus remained on the TSA’s use of naked body scanners at airports, the feds had already purchased hundreds of x-ray scanners mounted in vans that were being used to randomly scan vehicles, passengers and homes in complete violation of the 4th amendment and with wanton disregard for any health consequences.

WSBTV reported on one instance of the mobile scanners being used to check trucks for explosive devices at an internal checkpoint set up by Homeland Security, the Department of Transportation, and the TSA. Officials admitted there was no specific threat that justified the checkpoint, and although it was labeled a “counter-terror operation,” the scans were also being conducted in the name of “safety”.

EPIC will continue to pursue the case in an attempt to discover whether the DHS still plans to roll out mobile body scanners across America.

Related articles

• Court Orders TSA to Explain Lawless Use of Naked Body Scanners (thenewamerican.com)
• TSA flouts the law on body scanners (juneauempire.com)

No Freedoms to Hate Us For Anymore

Who Are the Evil Ones?

By MISSY BEATTIE | CounterPunch | May 18, 2012

Remember that they (the evil ones) hate our freedoms.

Remember, too, that in the aftermath of 9/11, the war criminals told us this repeatedly.  Here’s an example from George W. Bush:

They hate what they see right here in this chamber: a democratically elected government. Their leaders are self-appointed. They hate our freedoms: our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.

And another:

We must be strong and we must be decisive. We must stop the evil ones, so our children and grandchildren can know peace and security and freedom in the greatest nation on the face of the Earth… We know we’re one people; we know we’re one country. We’re united from coast to coast by a determination and a firm resolve to see that right prevails.

Remember, too, that this freedom, inspiring all that hatred, is enshrined in the Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Remember that the words “freedom” and “evil ones” also are enshrined in the language of corporate media “stars” and politicians.

Recall the words Barack Obama spoke during his Nobel Peace Prize acceptance speech:

The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.  We have borne this burden not because we seek to impose our will.  We have done so out of enlightened self-interest — because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others’ children and grandchildren can live in freedom and prosperity.

There’s the word “freedom” again. But in this paragraph, it refers to providing liberty to those whose countries we invade and occupy because we “seek” whatever (?) good transpires from granting “freedom and prosperity” to others.

Now, make note that the United States has departments and legislation to protect freedom to prevent the evil ones from inflicting harm. Here’s a list:

Department of Homeland Security (DHS)

Transportation Security Administration (TSA)

Total Information Awareness (TIA)

Patriot Act

Military Commissions Act

Homegrown Terrorism Act

House Resolution 347

National Defense Authorization Act

And think about the NATO Summit in Chicago—May 20^th and 21^st.   But first read an article by John LaForge for a stomach-lurching look at NATO’s “mission accomplishments”.

I just took a break from writing this, checked my mail, and read the following from Free Press:

Whether you’re a credentialed journalist, a protester or a bystander  with a smartphone, you are guaranteed freedom of speech, freedom of assembly and freedom of access to information.  Your right to document public events must also be protected.

Unfortunately, not everyone sees it this way. Conflicts are escalating between those trying to bear witness on one side and local police and government officials on the other.  All too often, the First Amendment is caught in the middle.

As protests and election-year events unfold in 2101, we must guard these rights and protect the networks that help us voice our political beliefs. Our First Amendment right to record must extend to everyone.

But Chicago Mayor Rahm Emanuel has put his official boot on this prerogative (the freedom for which the evil ones hate us) with certain ordinances that will remain in force after the summit:

• Authorization for the Mayor to purchase and deploy surveillance cameras throughout the city, without any type of oversight.
• Restrictions on public activity, including amplified sound and morning gatherings.
• Restrictions on parades, including the requirement to purchase an insurance policy worth $1 million and to register every sign or banner that will be held by more than one person.
• The power to deputize many different types of law enforcement personnel other than the Chicago Police Department.

After 9/11, fear and loss-of-liberty threats became a perfect petri dish for the corporatocracy and a miasma of secrecy, surveillance, intimidation, punitive measures, and endless war.

Pay close attention to the “Police Forces” section in the Wikipedia piece.  Along with this and all of the above, the truth about this freedom-hating propaganda strobe lights the impoverishment of loss. So many of the hallowed freedoms have been eliminated by the real enemies—Wall Street criminals and their puppets who reside in US government positions of “leadership.”

If “they” attacked us only because they hated our freedoms, there’s nothing to hate anymore.

Missy Beattie lives in Baltimore, Maryland.  She can be reached at: missybeat@gmail.com