Judge Says No To FOIA Request For TSA Body Scan Images

from the suspect-reasoning dept

Julian Sanchez points us to the news that a district court judge has rejected an attempt by the privacy-rights group EPIC to force Homeland Security to release some 2,000 full body scans from the TSA's new airport scanners. EPIC has been suing to get the new scanners banned, saying that the machines violate both the Fourth Amendment (unreasonable searches) and the Administrative Procedures Act, which requires a public review of such plans before the government can implement them.

The group had filed a Freedom of Information Act for a variety of information about the scanners a while back, and while Homeland Security provided some documents, it withheld 2,000 test images that were done with volunteers. EPIC then went to court, but the judge claimed that the government has no obligation to hand over such info, and that providing such info could "provide terrorists and others with increased abilities to circumvent detection by TSA and carrying threatening contraband onboard..." In other words, the judge buys into the TSA's strategy of security by obscurity.

Frankly, if it's really true that releasing some images of what these scans look like make it possible for terrorists to beat these machines, then these machines are clearly useless. The TSA is delusional if it thinks that terrorists can't get their hands on these kinds of images. If the machine is so weak that having some images teaches you how to beat it, then the machine shouldn't be used in the first place.


Reader Comments (rss)

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    C.T., Jan 13th, 2011 @ 4:10pm

    irony?

    Mike -

    I am somewhat surprised you didn't comment on the irony of EPIC, a privacy rights watchdog organization, seeking the disclosure of 2000 body scan images. I understand the strategy they were pursuing, but I am torn on whether it is an appropriate one. In a certain respect it would be like a pro-gun control organization seeking to distribute assault rifles to as many people as possible in order to be able to point to the violence that would ensue as evidence of the need for gun control laws.

     

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      Mike Masnick (profile), Jan 13th, 2011 @ 5:14pm

      Re: irony?

      I am somewhat surprised you didn't comment on the irony of EPIC, a privacy rights watchdog organization, seeking the disclosure of 2000 body scan images. I understand the strategy they were pursuing, but I am torn on whether it is an appropriate one. In a certain respect it would be like a pro-gun control organization seeking to distribute assault rifles to as many people as possible in order to be able to point to the violence that would ensue as evidence of the need for gun control laws.

      Yeah, actually, I was originally thinking of saying something like that. However, it does note that the images were all of people who volunteered specifically for this, so I'm not sure there's really a privacy angle...

       

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    Anonymous Coward, Jan 13th, 2011 @ 5:21pm

    I think that a FOIC request adds nothing. It is political grandstanding, not much else. What little that would be gained (some group having a bunch of pictures of people's nutsacks) doesn't even begin to balance out whatever losses that might occur in security. Remember, we are not terrorists (thankfully) so we have no idea what a terrorist might see as an opportunity to bring on a significant amount of explosives to an aircraft, or a drug smuggler for that matter.

     

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      scarr (profile), Jan 13th, 2011 @ 5:55pm

      Re:

      If we don't have an ability to know what a terrorist might see as an opportunity, why are we doing any of this? If you rely on a fence, you need to know where the holes are in it.

      Terrorists will figure out the holes. That's their job. It's important we find them first. The more people you let test the system (or at least the data set), the more likely someone will help you find a problem with it, before it really becomes a problem.

       

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        Christopher (profile), Jan 13th, 2011 @ 9:47pm

        Re: Re:

        Terrorists are not a real danger today. In 100 years, they have been able to kill a grand total of 5K people.... less than 1/10th to 1/20th of those killed EVERY SINGLE YEAR by car accidents ALONE in the United States.

        It's time to stop making these mass-murderers under a more terrifying name out to be more of a 'danger' than they actually are/were ever.

        I'm more worried about my right to not be treated like a criminal to use a service that I PAY FOR going down the drain for no good reason.

         

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          scarr (profile), Jan 13th, 2011 @ 11:56pm

          Re: Re: Re:

          That's an excellent point.

          I think it's important to test the proposed solutions to see if they if they're effective. My suspicion is that these backscatter machines will be proven ineffective, and thus not worth the cost/hassle/etc.

          A metal detector and well-trained people interviewing every passenger is far more effective than the nonsense we trot out in this country.

           

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          Hephaestus (profile), Jan 14th, 2011 @ 6:55am

          Re: Re: Re:

          I don't know why, after september 11th, we didn't just hand this over to the FBI and interpol and been done with it. Then let lawenforcement, the ones that are supposed to be responsible for things like this, track down the idiots responsible. Then do the same with all the following "terrorists". No loss of civil liberties, no HomeSec, no naked scanners, and no single word "terror(ist)" overused to justify war and cause fear.

           

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    scarr (profile), Jan 13th, 2011 @ 5:37pm

    The other question such a refusal raises in some people's minds is if the test images would show that they don't really work/show what they would have us believe they show. In other words, is this really a Wizard of Oz kind of power.

    I'm not saying it is. I just don't know what the review process was for this, and who had to sign off on the technology to get it approved. I'm sure lots of people would ooh and ahh at seeing a gun clearly defined in an example run, but that isn't a difficult item to pick out. We've been able to find them for ages with basic metal detectors.

    I hope I'm not sounding like -- or turning into -- a conspiracy nut. :P

     

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      Christopher (profile), Jan 13th, 2011 @ 9:49pm

      Re:

      Well, the Mythbusters guy already went through one of these machines with 12 inch STEEL knives, so.... I don't think that they are very good in the slightest.

      It's time to realize that all of this stuff is SECURITY THEATER and is not necessary to protect us. Focus on keeping people from getting into the cockpit of the plane by reinforcing the door very well/never having to have the pilot come out of the cockpit (put a bathroom in the cockpit, as well as meal services for long flights) and move on!

       

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    abc gum, Jan 13th, 2011 @ 6:09pm

    It's funny that people did not believe it when they were told that these machines were incapable of saving the images

     

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      Christopher (profile), Jan 14th, 2011 @ 3:24am

      Re:

      We knew that they could and that it was a design feature, the people who have access to/have relatives who have access to these scanners.

       

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    Jay (profile), Jan 13th, 2011 @ 8:12pm

    Funny how you can view a leak of the images on scanners faster than you can get detailed information on the damned things from the government.

     

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    ChimpBush McHitlerBurton, Jan 14th, 2011 @ 1:27am

    No qualifiers necessary

    "If the machine is so weak that having some images teaches you how to beat it, then the machine shouldn't be used in the first place."

    Or how about this?:
    "The machine shouldn't be used in the first place."

    No qualifiers necessary in my opinion.

    CBMHB

     

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    Anonymous Coward, Jan 14th, 2011 @ 5:11am

    they just dont want it to get out how they show everyone vividly naked!

    INVASION OF PRIVACY!

    I will NEVER fly again as long as they use them naked scanners!

     

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    Anonymous Coward, Jan 14th, 2011 @ 6:13am

    There must be a God because I don't have to fly anywhere. Thank you Lord!

     

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    ComputerAddict (profile), Jan 14th, 2011 @ 6:34am

    They should just release the images

    But then again if they released the images they would probably have huge "redacted" areas where huge black boxes cover the entire person.

    then again if you request the information enough times maybe you could piece it all together and get a whole set.
    (http://www.techdirt.com/articles/20101209/18050412224/fbi-almost-entirely-arbitrary-redacting -info-freedom-information-requests.shtml)

     

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    Anonymous Coward, Jan 14th, 2011 @ 9:01am

    Well, considering the nature of this post, I feel the need to chime in. I am a FOIA specialist by trade, so this is pretty ,uch my job. As a representative for the profession, I'll also be trying to keep personal opinion out of this.

    The issue is over Exemption (b)(2) High, or 5 U.S.C. 552 (b)(2): "This section does not apply to matters that are ... related solely to the internal personnel rules and practices of an agency". (b)(2) is seperated in to "high" and "low." "Low" encompasses trivial matters with no legitimate public interest, like parking policies or bathroom breaks. "High" applies to more substantial information if disclosure would potentially lead people to circumvent rules or statutes.

    In short, the (b)(2) High exemption is precisely "security through obscurity." There could be arguments of why this shouldn't be, but regardless, the law says that it is a perfecly acceptable exemption to FOIA disclosure.

    As for the "internal personnel rules and practices" (b)(2) has been ruled as an acceptable exemption for "vulnerability assessments." Test images by volunteers seems to fall under the same category, especially considering the whole point was to determine effectiveness.

    tl;dr - The ruling is legit. If you have issue, it should be with the law itself. "Security through obscurity" is enshrined in the case law of the FOIA.

     

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