ars technica | January 14, 2011
By Nate Anderson

Releasing its 2,000 item collection of naked body scans would "constitute a threat of [sic] transportation security," says the Transportation Security Authority, and a federal judge has agreed. The body scan images can remain secret.

This week's ruling from a federal judge in Washington, DC comes after a 2009 Freedom of Information Act (FOIA) request from the privacy group EPIC. EPIC wanted to see the specs for the new backscatter and millimeter wave body scanners now widely deployed at airports; it also asked to see the contracts for those machines, and it wanted the images generated by the scanners.

The images aren't of random travelers; instead, they show "various threat objects dispersed over the bodies" of testers who were vetting the machines to make sure they lived up to their spec sheets.

EPIC got the specs and the contracts, but TSA withheld 2,000 scans taken by the machines, saying they were mere "internal documents" that could legally be withheld under FOIA. Also, they could help terrorists.

"Certain security vulnerabilities"

EPIC sued for the images. One TSA agent testified to the court that release of the pictures would offer "insight into difficulties that may exist in identifying specific types of prohibited items, their sizes and shapes and consistencies, methods or locations of obscuring or camouflaging threat objects and the degree to which TSA settings and calibrations of screening equipment are distinct from the standards used by other organizations."

In addition, the government said that the images "would reveal certain security vulnerabilities of the machines themselves, as well as searching and screening techniques employed by TSA."

Judge Ricardo Urbina accepted the government argument that the images were protected from public disclosure. In a statement after the ruling, EPIC lawyer Ginger McCall said that "the documents show that the TSA was not honest with the public about the body scanner program” because the devices can save and even transmit images. The government has said repeatedly that these capabilities are meant only for calibration and testing.

"These images are central to the dispute about the invasiveness of the airport body scanners. That is the reason they should be disclosed to the public," said EPIC President Marc Rotenberg. EPIC is considering an appeal.