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Lawsuit Seeks Halt to TSA's Use of Full-Body Scanners at Airports amid Safety Concerns

March 28, 2012


Michael Grabell

reporter at ProPublica who has written a series of articles on TSA scanners. He is the author of Money Well Spent?: The Truth Behind the Trillion-Dollar Stimulus, the Biggest Economic Recovery Plan in History.

Marc Rotenberg

executive director of the Electronic Privacy Information Center.

As Congress asks if full-body scanners are "Effective Security or Security Theater?" we examine safety concerns at the heart of a lawsuit that seeks a freeze on the use body scanners pending an independent review. The Transportation and Security Administration has installed about 640 full-body millimeter wave and X-ray backscatter scanners at 165 airports as of January. Those who object to the full-body scans are subject to enhanced pat-downs and extremely invasive manual checks. "Every time the TSA is pressed on [health risk concerns], they always point to studies that they have arranged with other federal agencies, [refusing] to allow independent experts to make their own evaluation," says Marc Rotenberg, executive director of the Electronic Privacy Information Center, which is suing the TSA. "For all of these reasons — the lack of effectiveness, the privacy invasiveness, as well as the failure of the agency to conduct a real independent evaluation — we have sued to have the program suspended." We also speak with ProPublica reporter, Michael Grabell, author of a series of critical articles on the new scanners. [includes rush transcript]


This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We turn now to the question of airport security. How safe are the security scanners being used at airports? On Monday, the House Committee on Oversight and Government Reform held a hearing to allow the TSA to try to explain why Americans are subjected to such controversial procedures. The title of the hearing was "Effective Security or Security Theater?" However, one guest’s invitation was unceremoniously rescinded.

AMY GOODMAN: Bruce Schneier, an outspoken critic of security measures used by the TSA, says he was "formally un-invited" after the agency complained about his vocal opposition to body scanners. He wrote on his blog, quote, "The excuse was that I am involved in a lawsuit against the TSA, trying to get them to suspend their full-body scanner program. But it’s pretty clear that the TSA is afraid of public testimony on the topic, and especially of being challenged in front of Congress," he said.

Schneier opposes full-body scanners, saying they’re ineffective, misleading and sometimes compromise passengers’ dignity and health. He is also deeply critical of the TSA’s approach to security threats.

BRUCE SCHNEIER: If you think about what they do, they’re always preventing against what happened last time, right? Terrorists use guns and bombs, TSA takes away guns and bombs. The terrorists use box cutters, they take away box cutters and knitting needles. Terrorists put bombs in their shoes, they screen shoes. The terrorists use liquids, they take away liquids. Terrorists put bombs in underwear, they put in full-body scanners. The terrorists are going to do something else, right? This is a stupid game, and we should stop playing it.

AMY GOODMAN: Bruce Schneier is involved in a lawsuit filed by the Electronic Privacy Information Center to get the TSA to stop using body scanners, pending an independent review. The TSA has installed about 640 full-body scanners at 165 airports as of January.

For more, we’re joined by Marc Rotenberg, executive director of the Electronic Privacy Information Center, known as EPIC. And here in New York, Michael Grabell. He is a reporter at ProPublica who has written a series of articles on TSA scanners.

So, let me begin with Michael. This weekend, I flew to Minneapolis. And I always opt out of the big new scanners. And in Minneapolis, when I said I didn’t want to do it, you know, they make you wait for quite a while. It’s kind of punitive. They don’t have to, because a person is standing there not doing anything. And eventually they say, "OK, now you can come over." And then she started to argue with me about the safety, and she said, "I don’t see why you are not doing this. This is outrageous." And she’s arguing. I said, "I don’t even want to have a discussion about it. I just don’t want to do it. I have that option," although nowhere did it tell me I had that option. She told me how it is much less dangerous than using a cell phone. Do I use a cell phone? I said, "I really just want to get to the plane." And she said, "Do you use a cell phone?" I said, "I don’t want to answer that. I just want to go to the plane." And she said, "I need to know if you use" — which, of course, she had my cell phone and wasn’t giving it to me.

But anyway, I want to talk about the safety of these scanners, how often you see, in some cases, pregnant women and children being ushered to a metal detector, in other cases, put right through the major new scanners. What rights do we have? What concerns should we have about scanners? By the way, after going through this major ordeal, I got to the gate, and the plane was canceled, but that’s beside the point.

MICHAEL GRABELL: After all that.

AMY GOODMAN: OK, Michael Grabell?

MICHAEL GRABELL: So, it’s important to note there’s two kinds of body scanners. One emits radiation, which could lead to cancer. And those—

AMY GOODMAN: That’s called?

MICHAEL GRABELL: That’s called the backscatter machine, and it looks like two blue boxes. You see them at JFK Airport, LAX, Chicago. There’s another machine that they’re installing called a millimeter wave machine.

AMY GOODMAN: We’re going to show those right now.

MICHAEL GRABELL: You’re going to—OK.

AMY GOODMAN: Yeah, we’re going to show those images. So—and for people who are listening on the radio, you can go to our website so you can see the distinctions between them. So now you’re talking—

MICHAEL GRABELL: So, then, the other machine, the millimeter wave machine, is kind of a round glass phone booth, it looks like. And you go there, and you put your hands over your head, and the machine spins around you. And that emits electromagnetic radiation, which is similar to a cell phone and is considered safer than that and has not been linked to cancer. The questions that scientists and radiation experts have been raised is about these backscatter machines. Why are we using them when we have other technologies that don’t have this risk of additional cancer cases?

NERMEEN SHAIKH: What’s the response to that question?

MICHAEL GRABELL: So the response to the question that TSA has given is that we want—is essentially competition. We don’t want to have one source for this. We want to have—we want to keep these scanning companies trying to build a better mousetrap, and by having two scanners out there, we can achieve that. A lot of other countries have looked at this decision and said, "We’re only going to go with the millimeter wave machine, because why are we going to put people at an unnecessary risk if we don’t have to?"

AMY GOODMAN: Now, how much do we even know about the milli-wave machine, the one where you put your hands up, and it looks like a big round phone booth? Who actually did the testing on this? And did the scientists understand exactly what it would be used for?

MICHAEL GRABELL: We do know very—we do know very little about this area of technology. What we do know is there is a difference between ionizing and non-ionizing radiation. And the millimeter wave machines don’t have that. This machine was built specifically in the '90s. Back in, you know, the 1990s, during one of the presidential debates, President George H.W. Bush stood up with a really tiny metal gun, saying, you know, "The metal detector can't detect this." They funded a program to develop the millimeter wave machine to detect plastic guns and things that the metal detector couldn’t detect. And so that’s what led to the development. And it was—it was meant to be something that did not have a high risk.

AMY GOODMAN: Marc Rotenberg, what is your concern? Why are you suing on behalf of Bruce Schneier? You’re saying, end the body scan program now, until there’s a future—until there’s more inquiry.

MARC ROTENBERG: Sure. Well, let me say, Amy, first of all, that EPIC has been investigating the use of these devices and other security devices in U.S. airports for several years. And it was a Freedom of Information Act lawsuit that we had pursued against the TSA which led to the public release of the technical specifications for the devices, as well as the vendor contracts. And when we got those documents and sat down with technical experts, one of the first things that occurred to us was that the devices, as specified by the federal government, were not effective. In other words, it was fairly easy to figure out how to defeat the body scanners that the TSA was spending all this money on. So, our first concern was that they actually don’t work.

And as we studied the documents more, we also became aware of some privacy risks that the TSA had not described. That was the fact that the devices were designed to store and record images. So now you have people going through these—you know, essentially, it’s like an X-ray digital camera. It takes a picture of you with no clothing on. And with the capability of storing the images, the privacy risks were substantial.

The third issue that came up is the health risk. We didn’t have the expertise to evaluate the health impacts, but we said it was vitally important to have an independent evaluation. And every time the TSA is pressed on that issue, they always point to studies that they have arranged with other federal agencies. They have simply refused to allow independent experts to make their own evaluation.

So, for all of these reasons—the lack of effectiveness, the privacy invasiveness, as well as the failure of the agency to conduct a real independent evaluation—we have sued to have the program suspended. And what the federal court here in Washington ruled last year was that because passengers have a right to opt out—and that’s a legal right that was established by our case—they said it was permissible for the agency to continue the program. But they also said that the public—that the agency had to take public comment, that they simply couldn’t push this forward, as they have done, without receiving comments from the public. And that’s where we are now. We are waiting on the TSA to begin the formal public comment process, which will allow, by the way, you know, medical experts to voice their opinions and their concerns about the continued use of these devices.

NERMEEN SHAIKH: Marc Rotenberg, on the question of the effectiveness of these machines, earlier this month the government responded angrily to a YouTube video allegedly showing a Florida man sneaking a metallic object through two different body scanner devices at American airports. The TSA refused to directly address whether the man, Jonathan Corbett of Miami Beach, has discovered a method to beat the machines. The brief video allegedly shows Corbett, who has sewn a pocket to his side, get through two body scanners with a metallic object in that pocket. Let’s just go to a clip of that video.

JONATHAN CORBETT: Here are several images produced by TSA nude body images. You’ll see that the search victim is drawn with light colors and placed on a black background in both images. In these samples, the individuals are concealing metallic objects that you can see as a black shape on their light figure. Again, that’s light figure, black background and black threat items. Yes, that’s right, if you have a metallic object on your side, it will be the same color as the background, and therefore completely invisible to both visual and automated inspection. It can’t possibly be that easy to beat the TSA’s billion-dollar fleet of nude body scanners, right? The TSA can’t be that stupid, can they?

Unfortunately, they can, and they are. To put it to the test, I bought a sewing kit from the dollar store, broke out my eighth grade home ec skills, and sewed a pocket directly on the side of a shirt. Then I took a random metallic object—in this case, a heavy metal carrying case—that would easily alarm any of the old metal detectors, and I walked through a backscatter X-ray at Fort Lauderdale-Hollywood International Airport—on video, of course. While I’m not about to win any videography awards for my hidden camera footage, you can watch as I walk through the security line with the metal object in my new side pocket. My camera gets placed on the conveyor belt and goes through its own X-ray, and when it comes out, I’m through, and the object never left my pocket.

NERMEEN SHAIKH: Jonathan Corbett replicates the experiment with similar success at Cleveland Hopkins International Airport. Marc Rotenberg, your response?

MARC ROTENBERG: Well, I did see the video. We actually studied it pretty carefully. You know, look, I mean, on its face, it’s compelling. We didn’t do an independent evaluation of that approach, although I will say there are other approaches that have been widely documented, and they’re well known, in terms of defeating the body scanners.

But for me, what most clearly makes the case was listening to the House Oversight Committee hearing earlier this week, which you mentioned at the beginning of the broadcast. And it was obvious, if you listened to the exchange between the members of that committee and the representatives of TSA, that it’s well known that these are not effective and that there are a variety of ways in which they can be bypassed. So, you know, when the Oversight Committee and the agency itself essentially concedes that there are significant vulnerabilities, you know, I think that answers the question.

But the question that still needs to be answered—and I’ll come back to this—is why has the agency failed to give the public a meaningful opportunity to express its views about this program? We’ve received thousands of emails and posts, people describing incidents very similar, by the way, to the one that Amy described at the beginning of the segment, which is that when someone exercises the right not to opt out, they feel almost coerced or punished. They’re questioned, "Why don’t you like the device?" You know, they experience the enhanced pat-down. None of that is right. I mean, I think the agency should be held to account when people are not able to exercise their legal freedoms.

AMY GOODMAN: I want to talk about who’s making these machines, who’s profiting, and their connections to the Department of Homeland Security. During a hearing in 2010, the former chair of the House Aviation Committee, Congress Member John Duncan of Tennessee, questioned the role of lucrative government contracts in the TSA’s body scanning machines.

REP. JOHN DUNCAN, JR.: Far too many federal contracts are sweetheart insider deals. Companies hire former high-ranking federal officials, and then, magically, those companies get hugely profitable federal contracts. The American people should not have to choose between having full-body radiation or a very embarrassing, intrusive pat-down every time they fly, as if they were criminals.

AMY GOODMAN: Then, also in 2010, during the congressional hearing, Republican Congress Member Ron Paul accused former U.S. Homeland Security chief Michael Chertoff of making money off selling the new equipment.

REP. RON PAUL: We also know there are individuals who are making money off this. Michael Chertoff—I mean, here’s a guy that was the head of the TSA selling the equipment. And the equipment’s questionable. We don’t even know if it works, and it may well be dangerous to our health.

AMY GOODMAN: That’s now presidential candidate Ron Paul, Texas Congress member. Michael Grabell, you’ve been writing about also the corporate connections in ProPublica. What about this, Michael Chertoff and the corporations he’s now connected to?

MICHAEL GRABELL: So I’ve done some research. You know, he now runs his Chertoff Group, which has a lot of former Homeland Security officials who have gone into the private sector to advise companies. One of the companies they were advising in late 2009, early 2010, as the body scanner program was ramping up, was Rapiscan, the maker of these X-ray body scanners. Rapiscan and the TSA say it is—what he was consulting on was international port and cargo contracts and nothing domestic, nothing having to do with the scanners. I filed some Freedom of Information requests asking for his emails. Turns out Secretary Chertoff did not use email when he was secretary of Department of Homeland Security. But, you know, I’ve got some other emails of his aides, and there was really nothing—there was no smoking gun here that showed that he did have a role. We know he supported this within the agency. We don’t know that he’s profiting directly from the scanners.

What we do know is that, for a long, long time, there was a lot of opposition about the scanners for privacy reasons, for safety reasons. And around 2006, there was this big ramp-up of a lobbying campaign by both companies, Rapiscan and L-3. There were plants built in specific members of Congress—their districts to build machines. There were big contributions, political action committees set up. And it was around this time that they started gaining more and more acceptance. That’s not a direct—you know, you can’t draw the direct link, because it was also around this time that we started discovering that our airport security was woefully short for detecting explosives. And so, there was a lot of controversy about, you know, did you know you could get through an airport with explosives and nothing to stop you? So both of the things were happening around the same time, and there is a lot of money involved.

AMY GOODMAN: Marc Rotenberg, could you comment also on this? I mean, you often see Chertoff on television ramping up the whole concern and fear at airports, but never do they talk about his connection, the Chertoff Group, consulting, for example, Rapiscan.

MARC ROTENBERG: Well, the connection was reported several years ago, in fact, I think in the Washington Post. Michael Chertoff did concede that his company, his consulting group, received roughly a million dollars from Rapiscan the year after he stepped down as secretary of Homeland Security. There’s quite a lot of this that goes on, by the way. It’s part of our objection, of course, to the purchase of many of these new systems. I mean, not only do they have severe impacts on privacy and liberty, but oftentimes they’re being done to, you know, give money to federal officials who had some role in evaluating them previously. It’s really a very inefficient use, I think, of government resources.

And it’s interesting also when you think about the adoption of these systems in the U.S., and you contrast that with how other countries have simply said, "It doesn’t make sense to us. We’re not going to do this. They’re not effective." The health concerns were identified, in fact, by European governments a couple years ago. They have essentially rejected backscatter X-ray. They may still use the millimeter wave. But I think when you have an opportunity for independent evaluation, and when, you know, lobbyists who work for agencies aren’t able to push through poorly thought-out programs, you actually get much better outcomes. We’re not getting a good outcome here, in part because of the significant role that money plays in these decisions.

AMY GOODMAN: What about exposure of the people themselves, you know, the TSA workers themselves, around these machines? Let me put that to Michael Grabell—

MARC ROTENBERG: That’s a—yeah.

AMY GOODMAN: —and to Marc.

MICHAEL GRABELL: Sure. So the TSA screeners, I’ve spoken to many of them who are scared of these machines. I’ve spoken to a lot of—there are some others who are comfortable. But this is—the TSA, in the studies that they have commissioned themselves, show it to be a small amount. They don’t consider them radiation workers. But there’s a lot—there are a lot of TSA screeners and a lot of people in the public who say, why not allow them to wear the radiation badges so that we can find out for sure? And they have—

AMY GOODMAN: Some people said, who they had worked for private companies before 2001, being contracted, had dosimeters on them.

MICHAEL GRABELL: Did, in fact, yes.

AMY GOODMAN: But now they don’t. And then, don’t pilots and stewardesses get to opt out?

MICHAEL GRABELL: They do get—now.

AMY GOODMAN: Because they get—which tells us something.

MICHAEL GRABELL: And the radiation technicians have told some of the TSA screeners that "If I were on these machines, I’d be wearing a radiation badge." But the TSA has refused to let them.

AMY GOODMAN: Marc Rotenberg?

MARC ROTENBERG: Well, actually, in fact, I think the TSA is going to make dosimeters available to the TSA officials who work with the devices. We’ve been following the notices in the Federal Register pretty closely. And a few months ago, there was an indication that the TSA was launching a pilot program to make dosimeters available. Now, they will continue to maintain that there’s no health risk, but there’s been quite a lot of concern expressed, and I think now they’re beginning to acknowledge that people should have the right to at least know the level of exposure that they might be subject to.

AMY GOODMAN: I’m also looking at a 2010 New York Daily News piece about Janet Napolitano, the current Department of Homeland Security secretary. It says, "Airline passengers might want to consider a trip to the gym before heading to the airport now that high-tech body scanners have been unveiled at Kennedy Airport.

“Department of Homeland Security Secretary Janet Napolitano yesterday hailed them as an important breakthrough for airport security and [the] fight against terrorism.

"Yet when it came to testing the devices–which produce chalky, naked X-ray images of passengers–she turned the floor over to some brave volunteers."

I don’t know if it was because she didn’t want the pictures or she didn’t want the exposure, in all senses. But what about that, Michael? The secretary herself didn’t want to go through it.

MICHAEL GRABELL: That’s interesting. I don’t know that particular event. But—

AMY GOODMAN: But what happened to those pictures?

MICHAEL GRABELL: So—and Marc might be—might have more knowledge about this than I do, but my understanding is, in the pictures, the millimeter wave machines, the ones, again, that look like the round glass phone booths, only create a generic Gumby-type picture of you, and everyone looks the same. The backscatter X-ray machine still produce an image of you. It is a kind of a faded—more of a chalk outline, but you can still see, you know, parts that you might not want a screener to be seeing of you. So, this has been kind of a big concern of the program for a long time. And Marc should probably verify some of this.

AMY GOODMAN: Marc, 10 seconds, as we wrap up.

MARC ROTENBERG: Sure. Well, both devices capture the complete detail. The images that they show can be filtered, and they did that to address privacy concerns. But the privacy risks remain. And we continue to believe the program should be suspended pending an independent evaluation.

AMY GOODMAN: Do you think children, pregnant women should go through them?

MARC ROTENBERG: You know, I’m not a medical expert, but it concerns me that the TSA has been reluctant to allow medical experts to make that evaluation.

AMY GOODMAN: Well, I want to thank you very much for being with us. I have to say, when I was last at another airport, and they were letting the pregnant women and children go through, I said, "Isn’t this a sign that no one should go through?" They weren’t pleased with the response, and I had to even wait longer for that very aggressive pat-down. Marc Rotenberg, I want to thank you for being with us, executive director of EPIC, the Electronic Privacy Information Center, and Michael Grabell, for your great series in ProPublica.

This is Democracy Now! We’ll link to that series at In 30 seconds, we’ll be talking about President Obama’s meeting with the Pakistani leader in Korea. Stay with us.

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