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

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.