TSA’s Naked Imaging Machines Just Became Unconstitutional

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.

A few bad apples who in no way undermine the hard work that thousands of men and women at the TSA do to keep us safe, day in and day out.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. If this gets litigated I would imagine the federal courts will use the same argument they always do: you have a lower threshold of fourth amendment rights because you choose to go to the airport and subject yourself to going through security. The courts have refused to throw out mandatory DWI checkpoints, mandatory license checkpoints, enhanced screening and interrogations at our borders or any challenge to airport security since 9/11. The idea that this change will tip the balance strikes me as highly unlikely.

    Furthermore, your title is seriously misleading.

  2. @Charles nothing misleading about the title. I write that I do not expect courts to strike down the use of these scanners. I suppose you could take the position that the constitution says whatever a court says it says. On the contrary, I’m suggesting that famed jurist Douglas Ginsburg (whose nomination to the Supreme Court failed because he smoked pot while a professor at Harvard… don’t those days seem quaint?) wrote the opinion that these machines are constitutional precisely because they’re voluntary.

    The courts will certainly find a way to uphold these. You agree with the argument I’ve made in my post!

    But based on past rulings seemingly they should not.

  3. Actually, don’t count on it.

    Critical text of the Ginsburg opinion, which may be found at http://epic.org/privacy/body_scanners/EPIC_v_DHS_Decision_07_15_11.pdf follows:

    “That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT 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, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.”

    The fact that the scan was optional was only one factor in Ginsurg holding that the balance “clearly favors” a finding of constitutionality (you know, like its a slam dunk). I discourage a conclusion that the next court will hold that removing the option will lead to a different result, although it may no longer be the slam dunk Ginsburg indicated. And, until such a ruling occurs, I particularly discourage so bold a headline as “TSA’s Naked Imaging Machines Just Became Unconstitutional”.

  4. @jfhscott I agree with you 100% that it’s not clear the Court in which Ginsburg was writing — or any Court — would strike down use of the AITs. In fact, I state the opposite in my post.

    In saying that this is unconstitutional, I’m not saying that a court would rule that way. Quite often we make claims about constitutionality that differs from existing precedent. One is a substantive claim, the other formulaic.

    Although worth noting:

    1. Ginsburg also wrote, “Despite the precautions taken by the TSA, it is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not.” Hence we understand why he believed that the opt-out procedures were “more telling.”

    2. The ruling also preceded the government’s own evidence that the AIT scanner has NOT been successful in “detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form.”

    Both sides of the balancing equation have changed, in the logic laid out in the Ginsburg’s opinion, away from the finding of constitutionality.

  5. Gary,

    You are engaging in uncharacteristic semantic sleights of hand here.

    First, you affirmatively and confidently declare “TSA’s Naked Imaging Machines Just Became Unconstitutional” but later walk that back with “[b]ut 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.”. (Emphasis added). And FWIW, when I saw your headline, I anticipated content discussing how a federal district court somewhere had issued a TRO restraining TSA from requiring AIT scans.

    Then you explain “the Federal Appeals Court ruled in EPIC v. DHS that the scanners were constitutionally permissible because they’re optional”, insinuating that AIT’s being optional was necessary when Ginsburg at most indicated that AIT’s being optional was sufficient.

    Then you refine your statements with “[I]n saying that this is unconstitutional, I’m not saying that a court would rule that way. “. There is a difference between advancing an argument and reporting a purported fact. An unqualified affirmative claim of unconstitutionality, ipso facto, indicates that a court would rule in a particular way. This applies with particular force when you have cultivated a readership with faithful objectivity, letting facts take you wherever they lead. (This may suck, but it is the bitter that comes with the sweet).

    You are far, far, better than this.

  6. @jfhscott I think we’re actually talking past each other here a little bit, and it may be precisely that you’re a lawyer that leading you to think about the issue and my statements in a certain way that’s different than how i intend to communicate. Or it may be simply because I’m not a lawyer that I’m using words that have a particular meaning to you, while I’m speaking more as a generalist. I don’t think there’s sleight of hand.

    I think that there’s a powerful argument that the use of these machines violates the fourth amendment, but that Ginsburg made an equally powerful and correct point that to the extent the machines were voluntary — one way to get through the screening process — they weren’t forced and thus not substantially burdensome on rights.

    And now that they’re no longer voluntary, at least for some people, they are burdensome on rights.

    Ginsburg says you have to weigh that against the compelling interest of security. He wrote that before the government itself demonstrated that the machines don’t provide that.

    Taking both sides of the Ginsburg test, you’ve got less of a case that it provides security and more of a case that it violates rights. So I believe you OUGHT to get a different result. I also believe you WON’T get a different result.

    I will argue that the Patient Protection and Affordable Care Act is unconstitutional. If there was a manner in which it had a nexus to the kinds of things I write about here I’d even put together a post on it. And I might make the case for that position — even though in a 5-4 decision in National Federation of Independent Business v. Sebelius the Supreme Court said that is isn’t unconstitutional. (Leave aside King v Burwell and other cases.)

    I disagree with you 100% that a “claim of unconstitutionality, ipso facto, indicates that a court would rule in a particular way.” It was 100% reasonable to say ‘Separate But Equal is unconstitutional’ DESPITE Plessy v. Ferguson prior to the Supreme Court handing down Brown v. Board of Education.

    Put another way I do not accept “the Constitution says whatever a court says it says.”

  7. @jfhscott – No, this is pretty much par for the course with this blog anymore. The term for his headline is “clickbait” and it’s what many of the posts have become nowadays.

  8. Guys, guys, guys. This is business as usual here at Gary Leff’s clickbait factory. Don’t get so upset.

    To Charles and jfhscott, I think he knows that his titles are misleading; he simply does not care.

    I used to comment here all the time about the bad titles and Gary has always shrugged me off. He just doesn’t get it. I cherish my free time immensely, and I get aggravated when I click on an article expecting one thing, and get a reductive “Gary Leff” opinion piece instead. Why is this? Well it’s really one of two things: 1) he doesn’t understand the plain meaning of what his title suggests, which means he’s a bit dull in the brain; or 2) while he knows the titles are misleading, he also knows the bold heading draws in the crowd and spurs discussion, which is great for his metrics. I believe that he falls in the latter category.

    I strongly believe this is disrespectful to his readers’ time and have stopped using his referral links. I urge you all to discourage this practice by following suit. Otherwise, expect more of the same in 2016.

    Merry Christmas everyone. Enjoy your coal, Gary.

  9. @ Gary, The other comments are correct. You are way off base here Gary with your headline making a declaration about constitutionality and subsequent attempts to defend the original blunder. You have previously acknowledged that you are not a lawyer much less a lawyer who is familiar with constitutional issues. It is funny when lay persons make the bold statements when judges often have difficulty determining what is or is not constitutional. Even opinions of the Supreme Court change over time on issues of constitutionality.

    I don’t profess to be the final word on constitutionality, but I suspect voluntariness or having other options to a scanner has little or nothing to do with the issue of constitutionality. If one is selected for a random TSA search, the search will be far more intrusive than a scanner, and the subject has no alternative but to endure it. That does not make the search unconstitutional. Or perhaps it can be asserted that all TSA searches are voluntary since the passenger can always elect not to fly.

    At any rate, your headline is false and does not serve the interests of your readers. Most of your posts are helpful and informative. Hopefully no one makes the mistake of telling TSA what it can or cannot do because of your headline.

  10. The distinction here is between normative (“is unconstitutional” = “should be considered unconstitutional”) and predictive (=”will be held that way by a court”). But hope y’all had a nice Christmas!

  11. “So their procedures aren’t actually meaningful for security, leaving aside that they’ve never caught a terrorist.” Sounds like an “evidence of absence” to me. So because they haven’t caught one it must not be working? A simple debate would state it must be working as terrorists have not tried since it was implemented. I will give you we missed the shoe bomber, but I am almost positive there would have been other attacks if we had no TSA. The TSA has removed thousands of weapons over the years from passengers bags. I am 100% fine with the TSA and could not really care if someone sees me naked.

  12. Of course the title is pure click bait.

    It states definitively as fact an opinion that can only become a fact if decided by a court. The fact would have been much more interesting than the opinion, hence click bait.

    The misleading title leads us to an opinion piece in an area in which the author isn’t even particularly qualified.

    I sat on an airplane lots so that makes me an expert in constitutional law. Too funny.

    The comments were good though.

    And the article was still worth at least what we paid for it.

  13. So I guess the title should’ve been
    “Perhaps one step towards TSA’s Naked Imaging Machines being ruled Unconstitutional, if the courts agree with my interpretation.”

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