Last Friday a federal court ruled that the “nude scans” obtained by the Transportation Security Administration are not in violation of the Fourth Amendment’s prohibition against unreasonable searches. In rendering its decision, the D.C. Circuit Court of Appeals delivered a blow not only to the Electronic Privacy Information Center (EPIC), which had brought the suit against the Department of Homeland Security, but to decency and common sense.
Writing for the majority, Judge Douglas Ginsburg noted that the screening of passengers falls under the category of “administrative search,”the goal of which is not to determine whether a passenger has committed a crime but rather to protect the public from a terrorist attack. It is not hard to imagine scenarios where that relatively vague and slippery concept, which “does not require individualized suspicion” to be exercised, could be carried to dangerous extremes.
But the real failing in the court’s ruling is reflected in this portion of the opinion (which legal scholar Orin Kerr of the Volokh Conspiracy found surprisingly “sparse” in light of the public outcry over the TSA’s derelictions):
[W]e must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT [advanced imaging technology] and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown….
Can one assume Judge Ginsburg has at least a passing familiarity with the admission by the U.S. Marshals Service in August 2010 that they had stored 35,000 scanned images in an Orlando courthouse?
As for the “simple” alternative to a scan proposed by the judge, is he unaware of the dozens of horror stories over the past two years that have involved TSA pat-downs? Has he heard the one, for example, about the 3-year-old whose parents claim was “molested” by TSA personnel? Or about the woman who consented to a nude-body scan and then was subject to a hand search anyway? And then there are the true grotesqueries perpetrated by TSA’s crackerjack pat-down squad, such as the bladder cancer survivor who was left soaked in urine after agents burst the urostomy bag he was medically required to wear.
One could go on and on, extending the conversation to the issue of whether the AIT scanners are safe, but that’s another discussion—and another opportunity for the court to blow it.
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