Electronic Privacy Information Center v. United States Department of Homeland Security
397 U.S. App. D.C. 313
| D.C. Cir. | 2011Background
- EPIC and two individuals petition TSA to use advanced imaging at checkpoints; TSA deployed AIT to screen for nonmetallic threats; AIT produces unclothed-body images with privacy safeguards; TSA began field testing 2009 and expanded to primary screening nationwide in 2010; passengers may opt for patdown instead of AIT and privacy measures include image distortion and deletion; petition asserts violations of Privacy Act, RFRA, Fourth Amendment, and §553 APA notice-and-comment, prompting this court review and remand order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TSA violated APA notice-and-comment requirements | EPIC argues TSA failed to publish or solicit comments | TSA claims procedural exemptions apply | Remanded for notice-and-comment proceedings |
| Whether TSA’s AIT primary-screening rule is a substantive legislative rule needing notice | Rule is a substantive change affecting privacy | Rule falls under interpretive/organizational exceptions | Not fully exempt; sua sponte remand required |
| Whether Privacy Act claim against AIT survives lack of system-of-record linkage | AIT data may form identifiable records | No system of records linking by name established | Privacy Act claim fails on record-linkage grounds |
| Whether RFRA claims have standing and merit | RFRA burdened by religious objections to AIT | No proper RFRA party with standing before court | RFRA claim dismissed for lack of standing |
| Whether Fourth Amendment challenge to AIT is persuasive | AIT is more intrusive than necessary | Administrative search with privacy safeguards remains reasonable | Fourth Amendment claim denied |
Key Cases Cited
- Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C.Cir.2008) (arbitrary, capricious review for rulemaking denial)
- Pub. Citizen v. Dep’t of State, 276 F.3d 634 (D.C.Cir.2002) (notice-and-comment requirements narrowly construed)
- Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C.Cir.2002) (binding effect of agency statements; policy vs binding rule)
- McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C.Cir.1988) (binding nature of agency pronouncements; notice-and-comment)
- Hartwell v. United States, 436 F.3d 174 (3d Cir.2006) (airport screening and intrusiveness reasoning cited by court)
- City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (absence of individualized suspicion in checkpoints; reasonableness standard)
- Allied-Signal, Inc. v. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C.Cir.1993) (remand when agency action not fully compliant with APA)
- Amoco Prod. Co. v. Watson, 410 F.3d 722 (D.C.Cir.2005) (binding nature of agency pronouncements; interpretive vs substantive)