Electronic Privacy Information Center v. United States Department of Homeland Security

Federal law requires that any individuals boarding a commercial airplane must first be screened by the Transportation Security Administration (TSA), an agency within the United States Department of Homeland Security (defendant), to ensure they are not carrying dangerous weapons or explosives. Congress authorized the TSA to promulgate rules detailing the screening process. The TSA issued a regulation barring any individual from entering the departure area unless he or she complied with TSA procedures. Pursuant to a statutory directive to improve methods of detecting nonmetallic weapons and explosives, TSA contracted with private vendors to develop advanced imaging technology (AIT) scanners. AIT scanners allowed the TSA to detect nonmetallic objects by creating a crude image of an unclothed person. The TSA decided to use the AIT scanners for primary screening at a number of airports. The Electronic Privacy Information Center (EPIC) (plaintiff) and several organizations requested rulemaking regarding AIT screening pursuant to the Administrative Procedure Act (APA). The TSA denied the request. EPIC and two of its advisory board members who had been subjected to AIT screening (plaintiffs) petitioned the district court for review, arguing the TSA should have conducted notice and comment rulemaking before adopting its policy of using AIT scanners for primary screening.