Civil Rights

Airport Full-Body Scans Raise Legal Questions

Update

If TSA full-body scans give you the willies, you can take some comfort from a recent federal court ruling. A three-judge panel of the US Court of Appeals for the District of Columbia said TSA failed to follow federal law in adopting the scanners as a primary security measure. The court stopped short of telling TSA to stop using the scanners just yet though.

Instead, TSA must readopt the decision to use them, following appropriate rulemaking procedures. This means opening the proposal to public comment. Given an abundance of unsolicited negative comments from the traveling public, this should prove entertaining if nothing else. The court's instructed TSA to solicit comments "promptly." TSA may appeal the decision, which could delay or dispense with comments altogether. We'll update again with information on if, when and how you can submit yours. In the meantime, you can read the full text of the court's ruling here.

Update

Airport security "pat downs" are getting a little more personal. Transportation Security Administration (TSA) screeners are using a more aggressive technique to search airline passengers who choose not to undergo a full body scan.

Instead of lightly patting down bodies and using only the back of their hands over sensitive areas, screeners use their palms to slide over, push, and probe larger areas of the body, including the genitals. Some passengers complain that it's more like a groping than a frisking.

The TSA says it's gotten only a few formal complaints about the enhanced pat downs. But civil rights groups, including the American Civil Liberties Union of Massachusetts, question whether the searches are effective enough to justify the erosion of privacy.

Original Article

Since September 11, 2001, security has tightened at airports around the world, and especially in the US. A new agency - the Transportation Security Administration (TSA) - was formed and put in charge of safety?for the nation's transportation systems, including airports, sea ports, and railroads. At airports, new security measures were put into place almost immediately to prevent another 9/11-style attack.

On Christmas Day 2009, there was?both a stark reminder of why the increased security is needed and a warning that we may not be doing enough. Umar Farouk Abdulmutallab, the "underwear bomber," was able to board a US-bound flight with explosives on him. Passengers stopped his attempt to ignite the bomb while the plane flew over Detroit, Michigan.

His actions have caused the US (and other nations) to re-examine airport security. The result has been a push to use full-body scanners at airports. The proposal, however, raise questions about privacy and even child pornography.

Scanner Basics

Full-body scanners generate an x-ray-like image of an air traveler as he passes through the scanning booth. Like an x-ray penetrates clothing and skin to snap a picture of your bones, the full-body scanner pierces through clothing to reveal anything that may be hidden beneath.

The argument is that such a scanner would've revealed the explosives hidden in Abdulmutallab's pants, and therefore would have prevented him from boarding an airplane. It's a compelling argument. Everyone wants to fly safely and prevent more terrorist attacks.

The scanners are already in place in about 19 US airports. After Abdulmutallab's failed attack, the TSA ordered nearly 450 more machines to be installed and become operational in 2010. But the scanners' use doesn't come without problems.

Breach of Privacy

One of the first objections raised to the use of full-body scanners is the invasion of travelers' privacy rights. The scanner is likened to a "virtual" or "digital" strip search, and privacy advocates, such as the American Civil Liberties Union (ACLU), argue that the images produced by the machines are "virtually naked bodies" that disclose extremely private matters, such as sexual organs and medical details like scars and breast enhancements.

And air travelers are subjected to this embarrassment and humiliation, all without the benefit of a search warrant or even probable cause to believe that any passenger is committing or about to commit a crime.

The flip side of the privacy issue: Many travelers are willing to trade-off some privacy rights in favor of security and safety. Also, it should be noted that the scans are and will be voluntary. If, for whatever reason, you don't want to be scanned, you may request a full-body "pat down" by TSA agents. It should also be noted that some travelers are of the opinion that the scan is less intrusive than the pat-down search.

In addition, all in the interests of privacy, TSA agents look at the images at a site that's away from the scanner itself, that way they can't pick-and-choose whose scans to look at, such as celebrities. And, the images cannot be recorded, stored, transmitted, or printed, so you won't see them on tabloid covers or the internet.

Child Pornography

Is the full-body scanner digital image of a child or minor under the age of 18 child pornography under US law? Probably not, but the question is open for debate. Under US laws, "child pornography" requires a "visual depiction" of a minor (anyone under the age of 18) who's engaged in "sexually explicit conduct." Practically speaking, there's no sexually explicit conduct in the scanned images.

It may be argued, however, that full-body scan image of a minor is a "graphic exhibition" of the minor's "genitals," and so child pornography under US law. The argument, however, doesn't take into account the necessity that there be some reason for making or having the image that's based upon sexuality or sexual gratification before it may be considered pornography. After all, a scrapbook picture of your baby or toddler in the bathtub isn't child pornography. Or is it?

US laws are much different than those in the United Kingdom (UK). There, full-body scanners are used at in their airports, but not on travelers under 18?years old. That's because UK officials believe the scans violate UK child pornography laws, which prohibit "indecent images" of children.

Regardless of the debate, there are options. If you don't want your child scanned, you can opt to allow TSA agents to pat-down the child.

Safe is Safe

There's no question that protecting our privacy and children are important. But so is safety, both for those traveling by air and those on the ground in their homes and offices. There's not much debate on whether new or tighter security measures are needed at our airports. The question is, "What should we use?"

Despite the privacy and child pornography concerns, and given the fact that the scans are optional, full-body scans can go a long way toward keeping us safe.

Questions For Your Attorney

  • Does airport security have to ask my permission before they scan my toddler?
  • Can airport security be sued if it misreads a full-body scan and holds the passenger so long that she misses her flight?
  • Even if a full-body scan is an illegal search, is worth the time, trouble, and money to sue the TSA when I was injured or hurt in any way by the scan?

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