A Fourth Amendment legal challenge to the TSA scanners

by Wendy Thomson on March 7, 2013

Golden Lady Justice, Bruges, Belgium
Flying under the mainstream media radar is a case headed for oral argument in the federal First Circuit Court of Appeals in Boston this coming April 3rd. It may be off everyone’s radar, but that doesn’t mean it should be.

Several years ago a couple of enterprising Harvard law students filed a challenge to the backscatter x-ray scanners being installed in U.S. airports. At the time, the case got some decent press. What happened after that, however, hasn’t been covered much.

The two students have since graduated and taken their bar exams. And the Court has waffled on the case. At first, the judges dismissed it. Then they decided upon appeal that they really are interested in hearing the arguments surrounding Fourth Amendment rights and the Rapescan — oops, I mean Rapiscan — Advanced Imaging Technology (AIT) machines. (Of course, the TSA is now conveniently pulling the Rapiscan machines out of airports.)

Along the way, Freedom to Travel USA (disclaimer: I am a founding member) was asked if they would care to file an amicus brief. We have, and it has been accepted. We very much thank the attorney who has done a superb job on researching and writing our position: Mahesha Subbaraman of Robins, Kaplan, Miller & Ciresi in Minneapolis.

Our amicus brief requests that the Court not rule until it has undertaken due diligence in ascertaining the full effect of the TSA body scanners on the traveling public, especially on certain subsets of travelers (children, disabled, elderly, etc.). Mr. Subbaraman relies heavily on an exceptionally interesting case: Blackburn v. Snow.

In that case, a challenge was made to a prison’s standard procedure to strip-search each visitor in order to prevent any contraband from entering. Although the Court conceded that the aim of keeping contraband from the prison was valid, and also conceded that prison officials were given great latitude by the Courts, it held that the purpose of the search was not strong enough to override Fourth Amendment protections. The Court ruled this way even though the County Sheriff claimed that visitors had no reasonable expectation of privacy because they knew they would be strip-searched.

April 3rd is an important day, and this is a potentially important case. I would encourage anyone who can attend the hearing in Boston to do so. A packed courtroom speaks volumes to the presiding judge, and frankly sends a message to the TSA.

Dear TSA: the concept of probable cause is still valid. Touching our genitals and viewing our naked bodies is not an “administrative search.” It is an outright assault on a normal person’s reasonable expectation that their private parts are private.

Is that so hard?

(Photo: Emmanuel Huybrechts/Flickr Creative Commons)

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