By Jeffrey Rosen
Sunday, November 28, 2010; B01
Jeffrey Rosen, a law professor at George Washington University, is the author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age."
he protest on the Wednesday before Thanksgiving was called National Opt-Out Day, and its organizers urged air travelers to refuse the Transportation Security Administration's full-body scanning machines.
But many appeared to have opted out of opting out. The TSA reported that few of the 2 million people flying Wednesday chose pat-downs over the scanners, with few resulting delays.
There have been high-profile acts of civil disobedience in response to the two controversial procedures recently deployed by the TSA for primary screening - the body-scanning machines and the intrusive full-body pat-downs - including software programmer John Tyner's unforgettable warning to a TSA official: "If you touch my junk, I'll have you arrested." But the public seems less opposed to the scanners than civil libertarians had hoped. In a recent Washington Post-ABC News poll, only 32 percent of respondents said they objected to the full-body scans, although 50 percent were opposed to the pat-downs offered as an alternative.
That means opponents of the new measures will have to shift their efforts from the airports to the courts. One advocacy group, the Electronic Privacy Information Center, has already filed a lawsuit, calling the body scanners unconstitutional. Could this challenge succeed?
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. First, as European regulators have recognized, they could be much less intrusive without sacrificing effectiveness. For example, Amsterdam's Schiphol Airport, the European airport that employs body-scanning machines most extensively, has incorporated crucial privacy and safety protections. Rejecting the "backscatter" machines used in the United States, which produce revealing images of the body and have raised concerns about radiation, the Dutch use scanners known as ProVision ATD, which employ radio waves with far lower frequencies than those used in common hand-held devices. If 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, instead of generating a virtually naked image of the passenger. The passenger can then be taken aside for secondary screening.
TSA Administrator John Pistole acknowledged in recent testimony that these "blob" machines, as opposed to the "naked" machines, are the "next generation" of screening technology. His concern, he said, is that "there are currently a high rate of false positives on that technology, so we're working through that."
But courts might hold that, even with false positives, "blob" imaging technology that leads to a secondary pat-down is less invasive and more effective than imposing a choice between "naked" machines and intrusive pat-downs as primary screening for all passengers.
In the Netherlands, there's another crucial privacy protection: Images captured by the body scanners are neither stored nor transmitted. Unfortunately, the TSA required that the machines deployed in U.S. airports be capable of recording, storing and transmitting images when in "test" mode. The agency promised, after this capability was revealed by a Freedom of Information Act lawsuit filed by the Electronic Privacy Information Center, that the test mode isn't being used in airports. But other agencies have abused the storage capability of the machines. The U.S. Marshals Service admitted in August that it had saved more than 35,000 images from body scanners at the Orlando federal courthouse.
In evaluating the constitutionality of these scanners, U.S. courts might hold that the machines can't be considered "minimally invasive" as long as images can be stored and recorded.
In January, the European Commission's information commissioner criticized the scanners' "privacy-invasive potential" and their unproven effectiveness. And tests have shown that the machines are not good at detecting low-density powder explosives: A member of Britain's Parliament who evaluated the scanners in his former capacity as a defense technology company director concluded that they wouldn't have stopped the bomber who concealed the chemical powder PETN in his underwear last Christmas.
So there's good reason to believe that the machines are not effective in detecting the weapons they're purportedly designed to identify. For U.S. courts, that's yet another consideration that could make them constitutionally unreasonable.
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.
Will the Supreme Court recognize the unconstitutionality of body-scanning machines? It might have ruled against them five years ago, when the balance of power was controlled by Justice Sandra Day O'Connor.
O'Connor was an eloquent opponent of intrusive group searches that threatened privacy without increasing security. In a 1983 opinion upholding searches by drug-sniffing dogs, she recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information. The backscatter machines seem, in O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.
The Supreme Court might not view the matter differently today, now that O'Connor has been replaced by Alito, who wrote the lower-court opinion insisting that screening technologies had to be both effective and "minimally intrusive." Last year, the court struck down strip-searches in schools by a vote of 8 to 1.
In many cases, furthermore, Supreme Court justices are influenced by public opinion, consciously or unconsciously, and some polls suggest that opposition to these screening measures has grown in recent months. That reflects a basic truth of the politics of privacy: People are most likely to be outraged over a particular privacy invasion when their own privacy has actually been violated.
By Sunday evening, a projected 24 million U.S. travelers will have flown over the Thanksgiving holiday, and although less than 3 percent of them will have received intrusive pat-downs, many more will have gone through the scanners, holding their hands up in surrender as detailed images of their bodies flashed across a government screen.
It's possible, of course, that the TSA will respond to the backlash by rethinking its screening policies or that Congress will step in with regulations. But if not, the Supreme Court may be asked to hear a constitutional challenge to the body scanners before long. If the justices take the case, they should strike down the use of "naked" machines and intrusive pat-downs as an unreasonable search and a violation of what Justice Louis Brandeis called "the most comprehensive of rights" - namely, "the right to be let alone."