Appeal Filed Challenging TSA Airport Scanner Rules

Group also challenges whether TSA officials may be deemed to engage in law enforcement activity when the agency makes clear by regulation that such personnel do not engage in such activity.
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The group that won a partial victory in federal court in its legal challenged of the federal rules directing the use of full-body scanners to screen air travelers filed an appeal challenging the sections of the rule the court upheld.

The Electronic Privacy Information Center (EPIC) filed its appeal (No. 10-1157) on Aug. 29 seeking to “vacate” the he Department of Homeland Security’s rules on the use of Advanced Imaging Technology (AIT) to screen airline passengers.

On July 15, the U.S. Court of Appeals for the District of Columbia Circuit ruled the use of AIT machines is not an unconstitutional search—which was EPIC’s argument—and declined to halt the use of those imagers despite ruling the Transportation Security Administration (TSA) did not follow proper procedures for the deployment of those imagers.

EPIC’s appeal challenges whether the Fourth Amendment permits the government to capture details, naked images of all individuals who travel by commercial aircraft in the United States, absent any suspicion that a particular individual poses any threat to aviation security.

EPIC also challenges whether TSA officials may be deemed to engage in law enforcement activity when the agency makes clear by regulation that such personnel do not engage in such activity.

EPIC is also seeking a rehearing on whether AIT detects powders or liquids and whether the TSA’s “measures to protect privacy” adequately protects individuals from unreasonable searches and seizures.

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