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The Electronic Privacy Information Center (EPIC) has filed a federal lawsuit in Washington, D.C., under the Freedom of Information Act (FOIA) seeking information from the Department of Transportation (DOT) with respect to its plan to start a computer network that would link U.S. airline reservation systems to private and government databases. While quite a bit of concern has been expressed about security in the post-Sept. 11 world, EPIC is worried about the revelation and sharing of personal, demographic and travel information of airline passengers. THE COMPLAINT In its complaint, EPIC alleges that “subsequent to the terrorist attacks of September 11, 2001, the newly-created Transportation Security Administration (TSA) reportedly began planning and designing security systems that could implicate the privacy rights of American citizens.” The complaint cites a Washington Timesarticle that reported that “a DOT taskforce called the Credentialing Direct Agency Group, working under the TSA, was proposing a biometric identification card for transportation system workers.” The complaint further alleges that the “taskforce reportedly has proposed designing the system so that it can expand to include ‘trusted passengers.’” The complaint also refers to a Washington Postarticle that “reported on its front page the development of airline passenger screening/profiling systems that would ‘establish a computer network linking every reservation system in the United States to private and government databases.’” EPIC claims that it sent FOIA requests to the DOT in early February requesting “the disclosure of all records concerning the development of an identification system for transportation workers and its possible expansion to include all users of the transportation system.” EPIC requested expedited processing of its request based on “particular urgency to inform the public about the government activity involved in this request.” In another FOIA request to the DOT in early February, EPIC requested “the disclosure of all records concerning the development of airline screening/profiling systems.” Here, too, EPIC requested expedited processing. EPIC alleges that it has received two form letters from the DOT acknowledging its FOIA requests, but that it has not yet received responsive information and its requests for expedited processing have gone unanswered. EPIC seeks immediate processing of its requests and disclosure of responsive records, as well as its attorney fees and costs. POTENTIAL OUTCOME Under the FOIA, requests for information are supposed to be processed within a relatively rapid period of days unless a court has determined that “exceptional circumstances” warrant delay. Moreover, requesters, like EPIC, can seek expedited processing. Still, federal agencies at times are deluged with FOIA requests, and they have many competing priorities. Not that this is an excuse, but the FOIA time lines frequently are not met. Whether EPIC makes a case for expedited processing remains to be seen. These days, security concerns really do seem to trump privacy claims. Still, if privacy rights are at imminent risk, perhaps EPIC’s FOIA requests should be bumped to the top of the DOT’s pile. But even if EPIC obtains expedited processing, that does not necessarily mean that it will receive the information it seeks. Generally, the FOIA allows light to be shined such that requesters can learn “what the government is up to.” However, the FOIA contains certain exemptions that permit the government to shield types of information from public view. In this case, the government potentially could invoke the “national security” exemption to bar access to the requested information. ANON EPIC’s case has only just begun. Although the case probably will proceed fairly quickly, we still must wait and see how the DOT and the court will react. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is www.duanemorris.com. Mr. Sinrod may be reached by e-mail at [email protected].

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