We know that the TSA doesn’t actually catch contraband through the checkpoint the vast majority of the time. So their procedures aren’t actually meaningful for security, leaving aside that they’ve never caught a terrorist.
TSA Agents in Charlotte Watch News of the TSA’s Failure to Detect Weapons and Bombs, Instead of Searching for Weapons and Bombs (HT: >Tocqueville)
And leaving aside that a simple sewing kit is all you need to trick the naked imaging machines that most passengers ‘assume the position’ in at TSA checkpoints.
And that TSA use of those imaging machines has been illegal, according to the federal courts because they’ve failed to follow required procedures for their use.
Playmobil Airport Security Playset — Traditional Metal Detector
But now with news that the TSA will make the imaging devices mandatory for some passengers, it’s likely that use of these machines violate the fourth amendment.
The Federal Appeals Court ruled in EPIC v. DHS that the scanners were constitutionally permissible because they’re optional.
In that case the DHS represented that the body scanner program was optional and that passenger could always elect to opt for a pat-down. The D.C. Circuit, relying on the government’s representation, concluded that there was therefore no Fourth Amendment violation, because as Judge (Douglas H.) Ginsburg explained for the court,
‘More telling, any passenger may opt-out of AIT screening in favor of a pat-down , which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.’”
It may be — although the TSA hasn’t said so and their published policy isn’t so limiting — that it’s only people on watch lists for whom naked imaging is now mandatory. Of course which lists remains a question, and of course the TSA privacy impact assessment suggests mandatory nature of the screening is entirely at their discretion (essentially for any reason or no reason). And those watch lists are constitutionally problematic as well.
If you alarm inside the ‘advanced imaging’ device you get a thorough pat down. If you opt out, you go directly to that pat down. How requiring the imaging before the pat down is supposed to improve security (when TSA misses most things going through the checkpoint and the scanners are easy to foil by anyone trying anyway) makes no sense at all.
Nonetheless, I’d predict that even though the machines don’t improve security, and likely violate the constitution based on court precedent, that no Court will strike down their use or meaningfully limit their use. Because fear and appeals to ‘security’ — and the security state more generally — usually win.