A Fourth Amendment legal challenge to the TSA scanners

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, Jeffrey H. Redfern and Anant N. Pradhan, 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)

  • eamonkelly

    When you opt out of the AIT and they will not let you go through the magnetometer and must get a patdown, tell the TSO ” I am invoking and will not relinquish my 4th amendment right to unreasonable search and seizure. Any touching of my breasts, buttocks and genitals without my consent is sexual battery and a violation of those rights and I DO NOT consent. Do you understand?” Also, they cannot check your carry on unless you’re in attendance and you may have to tell them. Video everything. Watch ’em go nuts.

    • Eamon, you can certainly do that, and you won’t fly. Sommer Gentry, one of our writers (and a highly accomplished mathematician and TSA researcher), has done that and has walked away. She wrote about it here:

      How to stand up to the TSA and say “no”
      by SOMMER GENTRY on NOVEMBER 21, 2011

      John Tyner, of course, famously did it. And didn’t fly.

      Other than that, many thousands of people have videotaped/recorded their experiences or tried to. Some of them have been allowed; some of them haven’t. Many have been lied to about the legality of their recording and bullied into stopping, as I’m sure you know.

      In short, yes, there’s a lot people can do at the checkpoint to stand up for themselves; but no matter how legal, that standing-up will get them further harassed, punished, retaliated against, and forced to miss their flights. We’ve written about all of the above countless times. And if you click on the tab marked Master List at the top of this page, you’ll see even more.

  • Personally I have often been bothered by the searching of any kind even though I am aware of multiple risks stemming from this attitude. Breach of security of my belongings by the TSA or any other person opens me up to possible harm in two ways. One it opens me up to loss of property as seen by so many complaints of lost property and TSA theft.
    However even more scary it opens up my belongings to the possibility someone may insert something into them like the note to “get your freak on” inserted into a passengers bag that had a dildo in it. While the note may seem innocent in some ways it basically shows that someone can place an object into a normally locked bag. Which could include explosive materials or drugs or other objects which could then be possibly used to incriminate a passenger.
    There was also a case mention a few years back where a woman was shown a bag of white powder and asked if she could explain it. The woman of course had no explanation and it was passed off as a test…but can you imagine the possibilities or pressure that could be placed on a passenger who had no way of proving it was not in their bag. That they had never seen it before, etc?

    • Oline, you’ve hit the nail on the head, and we’ve written about this many times here.

      1. TSA theft is rampant.

      2. If someone can take something out of your bags, they can also put something in. We’re in more danger from the TSA than we are from The Big Scary Terrorists Who Are Hiding Around Every Corner.

  • Keep up the good work Wendy! We’re behind you 100%

  • Anonymous

    I wonder if the government will try to argue ‘mootness’ given that the backscatter machines are being removed from airports. I hope not since the millimeter wave machines raise exactly the same privacy concerns as do the backscatter machines.

  • Susan Richart

    While this is great, I hope that at some time someone will also take up the cause of the forced private room pat downs.

    • Daisiemae

      Or any pat downs at all. Nobody should have their breasts, buttocks, and genitals fondled as a condition of getting on a plane….either privately or publicly. And nobody should be forced to remove prosthetic limbs or breasts to display to these fools…either publicly or privately. And nobody should have to remove their adult or infant diapers for these fools…either publicly or privately.

      • Susan Richart

        I’m looking at the required private room search as being violative of the 4th amendment in that, in most cases, the search was triggered by a “positive” ETD swab.

        The search then becomes a probable cause search and is no longer under the auspices of the TSA, but rather becomes a LEO matter.

        The TSA hands over individuals found with guns every day to the LEOs and therefore has set a precedent, IMO, for also turning over individuals with “positive” ETD hits to LEOs.

        Just as with the backscatter x-rays, if pressure is put on the TSA to rectify the unreliable ETD machines, maybe the backroom searches, could be declared unconstitutional:

        “Moreover, the possibility for abuse is minimized
        by the public nature of the search.
        Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public.

        See United States v. Skipwith, 482 F.2d 1272, 1275
        (5th Cir. 1973).

        A private room is far from the “scrutiny of the traveling public.”

        • and one of the items they check for is glycerin…which is in most soaps and baby-wipes and many other normal consumer grade products look at the ingredients of lotions etc many have glycerin in them or at least did in the past. been a while since I read some of the labels I admit.