Electronic Privacy Info. Center, et al. v. Dept. of Homeland Security, et al., No. 10-1157 (D.C. Cir. 2011)Annotate this Case
The Electronic Privacy Information Center (EPIC) and two individuals petitioned for review of a decision by the Transportation Security Administration (TSA) to screen airline passengers by using advanced imaging technology (AIT) instead of magnetometers. EPIC argued that the use of AIT violated various federal statutes and the Fourth Amendment and, in any event, should have been the subject of notice-and-comment rulemaking before being adopted. The court granted the petition for review with respect to claims that the TSA had not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening at airports. None of the exceptions urged by the TSA justified its failure to give notice of and receive comment upon such a rule, which was legislative and not merely interpretive, procedural, or a general statement of policy. The court denied the petition with respect to EPIC's statutory arguments and their claim under the Fourth Amendment, except their claim under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq., which the court dismissed for lack of standing. Finally, due to the obvious need for the TSA to continue its airport security operations without interruption, the court remanded the rule to the TSA but did not vacate it.