Are TSA Tactics Constitutional? An Advocacy Group Sues to Find Out
posted at 11:50 am on November 29, 2010 by Howard Portnoy
The Thanksgiving turkey by now has been picked clean, but if you thought the discussion of full-body scans and pat-downs was over, you’re sadly mistaken. One group, the Electronic Privacy Information Center (EPIC), has only begun to fight.
EPIC has filed a lawsuit that challenges the constitutionality of the advanced imaging body scanners and pat-downs currently used by the TSA. The suit maintains that these measure violate the Fourth Amendment, which prohibits unreasonable searches and seizures.
While the courts are likely to give greater latitude to the federal government in matters like this, where national security is at stake, in 2006 then-Judge Samuel Alito delivered an opinion on behalf of the U.S. Court of Appeals for the 3rd Circuit that established the terms “minimally intrusive” and “effective” as constitutional benchmarks for airport security measures. Alito supported the two-step procedure of screening passengers with walk-through magnetometers and, in the event they set off an alarm, with hand-held wands, adding that the TSA could proceed to a putative step 3 “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”
A year later, the U.S. Court of Appeals for the 9th Circuit refined the language, maintaining 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.’
An argument could be made that current TSA practices fail the smell test imposed by both lower courts.
One particular potential stumbling block to upholding the constitutionality of the full-body scanners is the machines’ capacity in their present state to store “naked” images of passengers. As was discovered when EPIC initially filed its lawsuit earlier this year, the U.S. Marshals Service had saved more than 35,000 images from airport body scanners on a computer in an Orlando courthouse. If the court rules that machines can’t be considered “minimally intrusive” when they are capable of storing images, the TSA lawyers will have their work cut out for them.
Even the tide of public opinion appears to be shifting away from support for the TSA’s current tactics. A poll released by Zogby International last Tuesday found that 61% of Americans were opposed the use of full body scans and TSA pat downs. That number was significantly higher than one from an ABC poll conducted a few days earlier.
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