• Home
  • Reviews
    • Flight Reviews
    • Hotel Reviews
    • Lounge Reviews
    • Trip Reports
  • About
    • Press
  • Contact
  • Privacy
  • Award Expert
Live and Let's Fly
  • Home
  • Reviews
    • Flight Reviews
    • Hotel Reviews
    • Lounge Reviews
    • Trip Reports
  • About
    • Press
  • Contact
  • Privacy
  • Award Expert
Home » Analysis » D.C. Circuit Rejects Claim that TSA Full Body Scanners Violate Fourth Amendment
Analysisfull body scannersNewsTSA

D.C. Circuit Rejects Claim that TSA Full Body Scanners Violate Fourth Amendment

Matthew Klint Posted onJuly 18, 2011 2 Comments

In probing the Transportation Security Administration’s Advanced Imaging Technology program last week, the U.S. Court of Appeals for the District of Columbia Circuit squarely rejected the contention that the TSA’s use of AIT violates the Fourth Amendment. Distinguishing unlawful searches, the court labeled the use of AIT as a lawful “administrative search” because “the primary goal is not to determine whether any passenger has committed a crime, but rather to protect the public from a terrorist attack.” The court’s shallow analysis leaves much to be desired. To understand why, it is first necessary to examine the reason for the Fourth Amendment in the first place.

Like other portions of the Bill of Rights, the Fourth Amendment, guaranteeing protection against unreasonable government searches and seizures, came in response to particularly egregious action by the British Crown.  In the Writs of Assistance Case, British customs inspectors seeking to eradicate smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that authorized them to search anywhere they believed smuggled goods might be.

A group of Boston merchants, represented by James Otis, sued, arguing that the writs were invalid. The merchants lost, but Otis’s forceful oral argument, passionately defending the notion of individual privacy, quickly spread and strengthened opposition to British rule. Speaking of the proceedings, John Adams would later declare, “Then and there the child Independence was born.”

The Writs of Assistance Case was embedded in the mind of James Madison when he drafted language for the Fourth Amendment. Most importantly, the belief that the government should not be allowed to search without some substantial justification—some reason to believe the place being searched contains the evidence being sought—represented the intent and common understanding of the Fourth Amendment. There lay the problem with writs of assistance—they authorized searches based on no more than the unsubstantiated suspicion of the inspector.

More than two hundred years later, citizens face an analogous search at airports around the nation. The court justifies AIT as part of the government’s legitimate duty to protect citizens from terrorism, but a nebulous statement about protecting the public from harm should not constitute sufficient grounds to treat American citizens as guilty until proven innocent.

The Supreme Court has held the reasonableness of an administrative search from a Fourth Amendment perspective “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.”

With that rubric and the history of the Fourth Amendment in mind, even a cursory examination of the facts calls into the question the validity of using AIT as a primary screening mechanism. In weighing the competing interests above, the D.C. Circuit simply concluded, “That balance clearly favors the government here,” and proceeded to argue that AIT can detect items that magnetometers cannot as well as that a passenger may choose to opt-out.

The Court failed to address two key concerns set forth by privacy advocates. First, the Court assumed that AIT provides a more effective search of the passenger. In a hearing before Congress on March 17, 2010, Steve Lord, Director of Homeland Security issues for the Government Accountability Office, voiced caution over the TSA’s decision to ramp up AIT orders as well as to make such screening primary rather than secondary. He cautioned that AIT technology has not received the rigorous testing and evaluation necessary to conclusively determine its effectiveness. Most startlingly, a GAO investigation revealed that the explosive device taped on to the 2009 Christmas Day bomber’s underpants might not even have been detectable by AIT.

In operation, AIT has failed at key junctures to detect the very threats it is supposed to protect against. Recently, a government agent successfully smuggled in a handgun in her bra on five different occasions during an undercover test at Dallas-Fort Worth International Airport. Each time she went through security, she was screened by AIT and each time the machine did not detect the weapon.

While a 100% failure rate is typically enough to halt any program, the TSA responded by reaffirming their commitment to procure more of these machines.

The court also failed to address what happens to passengers who are uncomfortable with full body scanners, except to say they can opt-out. While it is true that passengers can opt-out, when they do they are subjected to a degrading pat-down that a reasonable person could only label as groping. A Hobson’s choice of a government agent feeling every crack and crevice of your body or a machine disrobing you simply because you wish to travel is hardly a choice at all and still has not been justified beyond a vague goal of protecting against terrorism. 

Congress should respond to this court decision by restricting the use of full body scanners to secondary screening only. Fourth Amendment concerns coupled with the poor record of this technology are cause for grave concern. At the very least, Congress should restrict the use of these devices until the TSA solicits the requisite public input and pays more than lip service to concerns over the privacy and effectiveness of these machines.

Get Daily Updates

Join our mailing list for a daily summary of posts! We never sell your info.

You have Successfully Subscribed!

Previous Article Woman Arrested for Groping TSA Agent
Next Article Review: The Westin Chosun, Seoul

About Author

Matthew Klint

Matthew is an avid traveler who calls Los Angeles home. Each year he travels more than 200,000 miles by air and has visited more than 135 countries. Working both in the aviation industry and as a travel consultant, Matthew has been featured in major media outlets around the world and uses his Live and Let's Fly blog to share the latest news in the airline industry, commentary on frequent flyer programs, and detailed reports of his worldwide travel.

Related Posts

  • a person holding a dish of ice cream

    United Airlines Adds Aperol Spritz, Caramel Sundaes, And New First Class Meals

    May 30, 2025
  • American Airlines Pinky Lawsuit

    Midair Meltdown: American Airlines Passenger Grabs Flight Attendant, Drags Her Down Aisle

    May 30, 2025
  • United JetBlue Strategy

    Analysis: United Hopes To Contain Delta, Suppress American With JetBlue Partnership

    May 29, 2025

2 Comments

  1. Shuji Reply
    July 20, 2011 at 5:06 pm

    http://www.bloomberg.com/news/2011-07-20/tsa-to-end-person-specific-body-scan-images.html

  2. Matthew Reply
    July 21, 2011 at 11:22 pm

    I’ll have some thoughts on this over the weekend. I will say now that it is a step in the right direction and helps to pacify some of my Fourth Amendment concerns.

Leave a Reply

Cancel reply

Search

Hot Deals for May

Note: Please see my Advertiser Disclosure

Capital One Venture X Business Card
Earn 150,000 Miles Sign Up Bonus
Chase Sapphire Preferred® Card
Earn 100,000 Points
Capital One Venture X Rewards Credit Card
Capital One Venture X Rewards Credit Card
Earn 75,000 Miles!
Capital One Venture Rewards Credit Card
Capital One Venture Rewards Credit Card
Earn 75,000 Miles
Chase Ink Business Unlimited® Credit Card
Earn $750 Cash Back
The Business Platinum Card® from American Express
The Business Platinum Card® from American Express
Earn 120,000 Membership Reward® Points

Recent Posts

  • Hong Kong Coffee
    Great Coffee In Hong Kong May 31, 2025
  • United JetBlue Partnership
    JetBlue Talked To American And Delta—But United Made The Offer It Couldn’t Refuse May 31, 2025
  • solo traveler Pricing
    Airlines Stop “Punishing” Solo Travelers: Victory Or Defeat For Consumers? May 31, 2025
  • Avelo White 737 Deportation
    Whiteout: Avelo Covers Livery On Aircraft Used For ICE Deportation Flights May 31, 2025

Categories

Popular Posts

  • a hand holding a blue card
    Chase Sapphire Preferred 100K Bonus Offer Ending Soon May 2, 2025
  • Aegean Airlines Feast
    A Feast Fit For A King On Aegean Airlines May 23, 2025
  • United American O’Hare gate dispute
    United Airlines To American Airlines: Fly More, Sue Less May 6, 2025
  • American Airlines 737-800 First Class Pathetic
    American Airlines 737-800 First Class: Pathetic May 6, 2025

Archives

June 2025
M T W T F S S
 1
2345678
9101112131415
16171819202122
23242526272829
30  
« May    

As seen on:

facebook twitter instagram rss
Privacy Policy © Live and Let's Fly All Rights Reserved. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Live and Let's Fly with appropriate and specific directions to the original content.