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The X-ray machines have been used at 12 U.S. airports to search air travelers
that U.S. Customs agents suspect are carrying illegal drugs.7 They
have also been used to search air passengers at London's Heathrow airport.
TSA has not formally announced when or where the backscatter machines will
be used to screen regular air travelers.8 However,
media reports have revealed some of the airports where the machines will
be or currently are being used. The airports are: Baltimore/Washington;
Dallas/Fort Worth, Jacksonville, Fla.; Phoenix, and San Francisco.9 Other
airports where TSA is also considering using the backscatter machines are:
Atlanta; Boston; Chicago O'Hare; Gulfport, Miss.; Kansas City; Las Vegas;
Los Angeles; Miami; Minneapolis/St Paul; New York JFK, and Tampa.10
Yet for all the detailed information the technology discerns, its utility appears to be limited. Keeping the radiation dose low enough to skim the skin's surface means that backscatter cannot detect weapons hidden in body folds.14 Nor is the technology the functional equivalent of a body cavity search.15 More importantly, low-dose backscatter x-ray does nothing to eradicate the risk of explosives and other contraband being brought aboard aircraft in carry-on or other baggage, for which Rapiscan technology is ineffective.16 Moreover, the likelihood of actually detecting materials that would not otherwise be found by routine screening, a magnometer, or physical inspection is so small when compared with the undressing of all air passengers, including young children, that many legal systems would consider the search to be disproportionate and overly invasive.
A capacity for public viewing, storage, and recall of the images raises special implications for many groups, including children and women. Many female passengers have complained to the FAA about "what amounts to sexual abuse " when they were made to submit to pat-down searches.17
Still, manufacturers and other advocates say that backscatter scanning could replace pat-down searches.18 Rapiscan said that, given the choice between a pat-down and the backscatter imaging, most people prefer the latter.19 However, at Orlando International Airport, at least 25% of passengers refused to submit to the scanning after viewing a sample image.20 Although Department of Homeland Security Secretary Michael Chertoff recently said such "hand-wringing" has delayed widespread backscatter deployment, U.S. travelers aren't the only ones hesitating. Passengers at London's Heathrow Airport expressed surprise and embarrassment upon viewing their Rapiscan images, and a Heathrow spokesman refused to disclose whether passengers preferred the scanning to a hand search. 21
The risks to privacy rights can be lowered only slightly with some modifications to TSA's current X-ray machine program. The agency could tailor the backscatter technology with the digital equivalent of a "fig leaf."22 As recently as November, the British press reported that the TSA did not intend to deploy the scanner until manufacturers had made such modifications.23 Whether the agency will modify the scanners before they are used at the 16 airport test sites is uncertain. Also, to limit exposure to public view, the screeners and their monitors could be placed in private booths, thus preventing the general public from viewing the detailed images.24 But even this technique leaves open the question of whether the original unedited image is obtained and stored by scanning device, whether or not it is available to a screener at a particular point in time.
TSA is asking for funding for these costly, privacy-invasive machines despite its history of showing little regard for the privacy rights of individuals. Passengers have often complained about the agency's poor redress procedures, for example its no-fly watch lists. The Government Accountability Office (GAO) and the Department of Homeland Security Inspector General in March released reports that were critical of the Transportation Security Administration.25 These reports highlight the agency's failures concerning privacy rights, transparency, and redress procedures.
The GAO's March report examined the Transportation Security Administration measures for testing the use of commercial data within Secure Flight, the agency's passenger prescreening program currently under development. The GAO was unable to assess, among other things, the effectiveness of the system, the accuracy of intelligence data that will determine whether passengers may fly, safeguards to protect passenger privacy, and the adequacy of redress for passengers who are improperly flagged by Secure Flight. 26
The recently enacted Intelligence Reform and Terrorism Prevention Act of 2004 directed TSA to create a system for travelers to correct inaccurate information that has caused their names to be added to the no-fly list.27 TSA maintains that it has an adequate redress process to clear individuals improperly flagged by watch lists; however, it is well known that individuals encounter great difficulty in resolving such problems. Senators Ted Kennedy (D-MA) and Don Young (R-AK) are among the individuals who have been improperly flagged by watch lists.28 Sen. Kennedy was able to resolve the situation only by enlisting the help then-Homeland Security Secretary Tom Ridge; unfortunately, most people do not have that option.
Also in March, the Department of Homeland Security Inspector General issued findings on TSA's role in collecting and disseminating airline passenger data to third party agencies and companies. The report revealed that the agency has been involved in 14 transfers of data involving more than 12 million passenger records.29 The Inspector General found, among other things, that "TSA did not consistently apply privacy protections in the course of its involvement in airline passenger data transfers."30 Furthermore, TSA did not accurately represent to the public the scope of its passenger data collection and use.31
The Inspector General's critical report comes almost a year after the agency's admission that it had acted improperly with regard to passenger data collection and use. In June 2004 then-TSA Acting Administrator Admiral David Stone admitted to the Senate Governmental Affairs Committee that in 2002 TSA facilitated the transfer of passenger data from American Airlines, Continental Airlines, Delta Airlines, America West Airlines, Frontier Airlines, and JetBlue Airways to TSA "cooperative agreement recipients" for purposes of CAPPS II testing, as well as to the Secret Service and IBM for other purposes.32 Stone's admission followed repeated denials to the public, Congress, GAO, and Department of Homeland Security Privacy Office that TSA had acquired or used real passenger data to test CAPPS II.33
The government also uses backscatter technology to conduct searches for purposes unrelated to aviation security. AS&E stated that the technology is used in more than 30 federal agencies, including the Capitol Police and the Department of State, the latter of which uses backscatter technology at overseas embassies.34 The company said that the Department of Homeland Security uses its backscatter vans—whose imaging technology exposes the contents of passing vehicles and can be operated remotely—for "counterterrorism applications."35 Backscatter devices are reportedly in use in American prisons.36
Backscatter technology enables a virtual strip search that produces detailed naked images of individuals, including females and young children. The technology provides little additional security beyond other screening techniques, including magnometers, physical examination, and baggage inspection. It is an extraordinarily invasive technique that is disproportionate to its use. Future funding of this program should be suspended.
1 Department of Homeland Security, Budget-in-Brief
Fiscal Year 2006, at 81-82 (Feb. 7, 2005) available at http://www.epic.org/privacy/surveillance/spotlight/0505/dhsb06.pdf;
The Honorable Hal Rogers Opening Statement: Hearing on Fiscal Year 2006 Transportation Security Administration Appropriations Before the Homeland Sec. Subcomm., House Appropriations Comm., 109th Congress (2005) (statement of Rep. Harold Rogers). The cost of the machines appears to range between $100,000 and $200,000, e.g., Leslie Miller, Feds Want See-Through Security, Associated Press, June 26, 2003 available at http://www.cbsnews.com/stories/2003/06/26/tech/main560541.shtml.
2 For general information about the machines, see EPIC's "Backscatter" X-Ray Screening Technology page at http://www.epic.org/privacy/airtravel/backscatter/.
3 See, e.g., Miller, supra note 1.
4 Electromax Int'l, Inc., Rapiscan Secure 1000 FAQ's, at http://www.electromax.com/rapiscan%20secure%201000%20faq.html. See CNN Crossfire, (Cable News Network Mar. 18, 2002) (interviewing mayor of Orlando about use of backscatter machines in airport).
5 See Am. Sci. & Eng'g, Inc., BodySearch Advanced Personnel Inspection System (product brochure), at http://www.as-e.com/products solutions/body search.asp; also at http://www.epic.org/privacy/surveillance/spotlight/0605/ase.pdf.
6 Rapiscan Sys., Rapiscan Secure 1000 (product brochure), at http://www.rapiscansystems.com/datasheets/Rapiscan Secure1000 Screen.pdf; also at http://www.epic.org/privacy/surveillance/spotlight/0605/rapiscan.pdf.
7 Thomas Frank, Airports roll out high-tech security, USA Today, May 16, 2005 available at http://www.usatoday.com/news/nation/2005-05-15-airport-xray-bottomstrip_x.htm
8 The agency has refused to formally acknowledge the names of the airports where backscatter machines are currently being tested. Joe Sharkey, Airport Screeners Could Get X-Rated X-Ray Views, NY Times, May 24, 2005, at C5.
9 Kerry Ezard, Florida's Jacksonville airport to test new ETD portal, Air Transport Intelligence, Jan. 28, 2005; Kerry Ezard, US TSA picks 16 airports to test explosive detection systems, Air Transport Intelligence, Dec. 28, 2004; Michael Grabell, Terminal's Security Hides In Plain View: We Really Kind Of Looked At The Lessons Learned,' Dallas Morning News May 29, 2005, at 6D; Molly Knight, Newest arrival at BWI: high-tech screening device, Baltimore Sun, Feb. 9, 2005, at 1B.
10 Kerry Ezard, US TSA picks 16 airports to test explosive detection systems, Air Transport Intelligence, Dec. 28, 2004.
11 See, e.g., CNN Crossfire, supra note 4.
12 Ethan Forman, Backscatter Awaits as Backup for Billions in Security Shortcomings, J. New England Tech., May 16, 2005 available at http://www.masshightech.com/displayarticledetail.asp?art_id=68635&sec_id=43.
13 Miller, supra note 1.
14 Sharkey, supra note 8.
15 Electromax Int'l, Inc., supra note 4. See CNN Crossfire, supra note 4.
17 See CNN Wolf Blitzer Reports (Cable News Network Mar. 15, 2002) (quoting Barry Steinhardt, ACLU Associate Director), available at http://archives.cnn.com/TRANSCRIPTS/0203/15/wbr.01.html; Ken Kaye, Security Checks Called Too Harsh For Frail Travelers, Sun-Sentinel, Feb. 7, 2005.
18 Sharkey, supra note 8.
19 Electromax Int'l, Inc., supra note 4; Ursula Owre Masterson, Airports Seek Hi-Tech Security: All-Seeing Devices Are on the Market, MSNBC News, Apr. 3, 2002 available at http://msnbc.msn.com/id/3071573.
20 Dipesh Gadher, Plane Passengers Shocked by Their Naked X-Ray Scans, Sunday Times (London), Nov. 7, 2004, at 7 available at http://www.timesonline.co.uk/article/0,,2087-1348172,00.html.
21 Gadher, supra note 20.
22 Miller, supra note 1.
23 Gadher, supra note 20.
24 Masterson, supra note 19.
25 Government Accountability Office, Secure Flight Development and Testing Under Way, but Risks Should Be Managed as System Is Further Developed, GAO-05-356 (March 2005) (hereinafter "GAO Report"). Department of Homeland Security Inspector General, Review of the Transportation Security Administration's Role in the Use and Dissemination of Airline Passenger Data (Redacted), OIG-05-12 (March 2005) ("OIG Report").
26 GAO Report at 53-62, supra note 25.
27 P.L. No. 108-458 (2004).
28 See, e.g., Sara Kehaulani Goo, Committee Chairman Runs Into Watch-List Problem, Washington Post, Sept. 30, 3004; Leslie Miller, House Transportation Panel Chairman Latest to be Stuck on No-Fly List, Associated Press, Sept. 29, 2004; Richard Simon, Iconic Senator Is Suspicious to Zealous Airport Screeners, Los Angeles Times, Aug. 20, 2004; Shaun Waterman, Senator Gets a Taste of No-Fly List Problems, United Press International, Aug. 20, 2004.
29 OIG Report at 6-7, supra note 25.
30 Id. at 40.
31 Id. at 42-48.
32 See U.S. Senate Committee on Governmental Affairs Pre-hearing Questionnaire for the Nomination of Admiral David Stone to be Assistant Secretary of Homeland Security, Transportation Security Administration 17, 19, available at http://www.epic.org/privacy/airtravel/stone_answers.pdf.
33 See, e.g., Ryan Singel, More False Information From TSA, Wired News, June 23, 2004 ("After the JetBlue transfer was brought to public attention in September 2003, TSA spokesman Brian Turmail told Wired News that the TSA had never used passenger records for testing CAPPS II, nor had it provided records to its contractors. In September 2003, Wired News asked TSA spokesman Nico Melendez whether the TSA's four contractors had used real passenger records to test and develop their systems. Melendez denied it, saying, We have only used dummy data to this point.' "); U.S. Representative John Mica (R-FL) Holds Hearing on Airline Passenger Profiling Proposal: Hearing Before the Aviation Subcomm. of the House Transportation and Infrastructure Comm., 105th Cong. (March 2004) (Admiral Stone testifying that CAPPS II testing was likely to begin in June 2004); GAO Report at 17 ("TSA has only used 32 simulated passenger records created by TSA from the itineraries of its employees and contractor staff who volunteered to provide the data to conduct [CAPPS II] testing"); Department of Homeland Security Privacy Office, Report to the Public on Events Surrounding jetBlue Data Transfer (Feb. 2004) 8 ("At this time, there is no evidence that CAPPS II testing has taken place using passenger data").
34 Hearing on Deployment and Use of Security Technology before the House Subcommittee on Aviation, 107th Congress (2001).
35 Am. Sci. & Eng'g, Inc., Z Backscatter Van (ZBV) (product brochure), available at http://www.as-e.com/products solutions/zbv.asp.
36 See Nat'l Council on Radiation Prot. & Measurements, Dep't of Health & Human Servs., Presidential Report on Radiation Protection Advice: Screening of Humans for Security Purposes Using Ionizing Radiation Scanning Systems 16 (Oct. 1, 2003), http://www.fda.gov/ohrms/dockets/ac/03/briefing/3987b1 pres-report.pdf.