Here's an interesting op-ed at the Washington Post by Jeffrey Rosen, a law professor at George Washington University, about the legal issues behind a recent lawsuit filed by the Electronic Privacy Information Center challenging the constitutionality of the controversial body scanners being used by the TSA at our airports:
Courts evaluating airport-screening technology tend to give great deference to the government's national security interest in preventing terrorist attacks. But in this case, there's a strong argument that the TSA's measures violate the Fourth Amendment, which prohibits unreasonable searches and seizures.
Although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.' "
In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both "minimally intrusive" and "effective" - in other words, they must be "well-tailored to protect personal privacy," and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate "in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search."
As currently used in U.S. airports, the new full-body scanners fail all of Alito's tests...
...Broadly, U.S. courts have held that "routine" searches of all travelers can be conducted at airports as long as they don't threaten serious invasions of privacy. By contrast, "non-routine" searches, such as strip-searches or body-cavity searches, require some individualized suspicion - that is, some cause to suspect a particular traveler of wrongdoing. Neither virtual strip-searches nor intrusive pat-downs should be considered "routine," and therefore courts should rule that neither can be used for primary screening.
I strongly encourage you to read the rest of the article. It makes it clear that the TSA is not only not using the best available technology, but is engaging in violations of our privacy far beyond what is necessary, and without any additional security benefits. For example, scanner machines are available which do not create a complete detailed image of the person's naked body, but instead, "[i]f the software detects contraband or suspicious material under a passenger's clothing, it projects an outline of that area of the body onto a gender-neutral, blob-like human image," and that image can then be analyzed to determine if secondary screening of that passenger is necessary. The fact that the TSA machines are capable of recording, storing, and transmitting images is also problematic.
I am supposed to fly next month and I am sincerely hoping that before I head to the airport, the TSA engages in some serious evaluations of its policies, either voluntarily or because one of these lawsuits forces them to do so. I shouldn't have to chose between being groped by a stranger or giving the government a naked photo of my body in order to board a plane, especially when neither of these things actually helps keep us any safer.
Look what the body scanners miss...this is a video of Adam Savage, from Discovery Channel's Mythbusters show, sharing an experience he had with the TSA recently (warning, NSFW language):
Did you see that? He had two 12" razor blades with him. Twelve inch razor blades! Remember, the 9/11 hijackers committed their horrific acts with box cutters, which have a similar blade, but smaller!
The scanner machines missed these razor blades. Completely missed them. "WTF" is right!