Why the TSA pat-downs and body scans are unconstitutional

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/24/AR2010112404510.html

Why the TSA pat-downs and body scans are unconstitutional
By Jeffrey Rosen

... 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 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, 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 has incorporated crucial privacy and safety protections. Rejecting the "backscatter" machines used in the U.S., 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... 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...

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... 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...

IMHO, I don't think the courts would find this argument persuasive.

Randomly choosing passengers & feeling their genitals, in the hopes of finding explosives there, is so far beyond reasonableness that I hope there is some pushback from the courts.

There should be pushback from the courts, whether-or-not there will be.

The OP doesn't link to the decision in question, in which airport screening per se was only an ancillary issue in the course of deciding whether the TSA could reach into the guy's pocket after he dropped his pants - and yes, he dropped his pants.

The full decision is here, but take a look at what was cited along the way:

http://www.ca3.uscourts.gov/opinarch/043841p.pdf

First, there can be no doubt that preventing terrorist attacks on
airplanes is of paramount importance. See United States v.
Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to
overestimate the need to search air travelers for weapons and
explosives before they are allowed to board the aircraft. As
illustrated over the last three decades, the potential damage and
destruction from air terrorism is horrifically enormous.”); United
States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002) (“the events
of September 11, 2001, only emphasize the heightened need to
conduct searches at this nation’s international airports”); Singleton
v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979)
(“The government unquestionably has the most compelling
reasons<—>the safety of hundreds of lives and millions of dollars
worth of private property<—>for subjecting airline passengers to a
search for weapons or explosives that could be used to hijack an
airplane.”).


...

Sitz makes clear that “his passage from Brown was not
meant to transfer from politically accountable officials to the courts
the decision as to which among reasonable alternative law
enforcement techniques should be employed to deal with a serious
public danger.” Sitz, 496 U.S. at 453. The “effectiveness” prong
search, there is no effective means of detecting which airline
passengers are reasonably likely to hijack an airplane.” Singleton,
606 F.2d at 52. See also Marquez, 410 F.3d at 616 (“Little can be
done to balk the malefactor after weapons or explosives are
successfully smuggled aboard, and as yet there is no foolproof
method of confining the search to the few who are potential
hijackers.” (internal quotation marks, brackets, and citation
omitted)); United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.
1973) (procedures requiring the screening of all passengers and
luggage “have every indicia of being the most efficacious that
could be used”). Additionally, it is apparent that airport
checkpoints have been effective.

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I highlighted one point in particular that bears some thought as to how a court is going to handle a battle between plaintiff's experts and the presumption of administrative competence which is going to adhere in the TSA's determination of policy.

I had no idea what it was at the time, At least 1 in 8 in the line went through it.

I'm assuming it was a test of the system.

It's all creepy, and the ppl making $$$$ off of them are the worst of the worst parasites.

The actual case was about whether the cocaine found on Hartwell during airport screening was admissible.

That airport screening falls under the administrative search doctrine was pretty much a given, and only got glancing treatment in ruling on the overall issue of whether they could take him off to a private room and pull the coke out of his pocket.

And, yes, they reached into his pocket.

http://www.ca3.uscourts.gov/opinarch/043841p.pdf

Even in the abbreviated treatment of airport screenings, a lot of the facile arguments made frequently here at DU are pretty well thrown under the bus, e.g.:

"Hartwell argues that once the TSA agents identified the
object in his pocket and he refused to reveal it, he should have had
the right to leave rather than empty his pockets. We reject this
theory. As several courts have noted, a right to leave once
screening procedures begin “would constitute a one-way street for
the benefit of a party planning airport mischief,” United States v.
Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (internal quotation
marks and citation omitted), and “would ‘encourage airline
terrorism by providing a secure exit where detection was
threatened,’” People v. Heimel, 812 P.2d 1177, 1182 (Colo. 1991)
(quoting Pulido-Baquerizo, 800 F.2d at 902). See also Torbet v.
United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002) (“To
avoid search, a passenger must elect not to fly before placing his
bag on the x-ray belt.”)"

Like, if you were caught with an illegal gun by the scan, the government would have a problem charging you based on that scan. I don't see what that has to do with airport security area access.

They can eject you for talking about bombs and hijackings, too; that's not an infringement on the first amendment.

stop anyone who drives down that road.

I don't agree, but Americans were deprived of the right to move about freely quite some time ago.