I have a huge problem with the TSA's body scanners. It's like something out of a dystopian science fiction novel: Virtual strip searches that are applied to every airline passenger. I think it's a violation of our rights against unreasonable searches. And I worry about these body scanners extending beyond airports. If they're okay for airlines, why wouldn't they be okay at train stations? And if they're okay at train stations, why not at football games? And if they're okay at those places, why not grocery stores or public schools?
The TSA allows you to "opt out" of the body scanner, an option I've always chosen. When you do so, the TSA requires that you submit to a manual body search
-- an "enhanced" pat down, as they say. This pat down has usually been fine for me, except the last time I flew. The TSA agent pretty much punched my nuts four separate times in the course of the search, and left me aching (and feeling humiliated and assaulted) for a couple hours.
Both of these facts make me want to never fly so long as the scanners/pat downs are in place. (My parents live in Florida, so I'm not looking forward to the two day drive I'd have to make to visit them, but oh well.)
Anyway, so there are lots of very thoughtful people here. Which leads me to ask:
* Is my appraisal of the body scanner reasonable? Is the body scanner an unconstitutional violation of our rights?
* Is it reasonable to refuse to fly because of the TSA? Are there better ways to register my protest?
* Is there anyone else out there who refuses to fly because of the TSA and what has your experience been?
Edit (1/21/2013): I've added some additional reasoning, after being presented with the fact that the courts have pretty much entirely disagreed with me. So here it is:
So I finally got around to reading the opinion
on why exactly the new, enhanced searches are not a violation of the fourth amendment.
Just to reiterate for our non-American friends, the fourth amendment of our constitution prohibits our government from conducting unreasonable searches without a warrant and/or probable cause. The TSA is a government agency and are therefore subject to that law.
This right is stringently protected. For example, the courts have ruled that cops can't just arbitrarily stop pedestrians and frisk them without probable cause.
I've quoted the most important bit here:
Finally, the petitioners argue that using AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives. In view of the Supreme Court’s “repeated refus[al] to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” [...], and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment.
As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. An administrative search does not require individualized suspicion. [...] (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” [...], 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.
Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. [...] The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” [...]
Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.
I disagree with the courts.
I think they've made a mistake when it comes to their reasoning around the "least intrusive search." They've said that the TSA is not obligated to perform the "least intrusive search" that satisfies their obligation to find weapons and explosives. But I completely disagree. The courts have granted an exception
to the fourth amendment. As such, that exception should be made in the most limited fashion available. I think maintaining privacy as much as we can is core to the spirit of the constitution.
I think they've overestimated the TSA's commitment to privacy, which seems very important to the decision. I'd be interested in seeing another petition centered around demonstrating the TSA's systemic lack of respect of traveler's privacy. (Hell, maybe my balls could become plaintiffs.)
I think the courts have underestimated the harm that a full body scan or a manual search causes some air travelers. I would be interested in seeing petitions by transgendered plaintiffs, for example, or others who are done harm by a search.
I also think think that they have not fully considered the escalating nature of these types of screenings -- in other words, if the only grounds the government needs to conduct an administrative search is the possibility of terrorism, then it follows that these types of screenings would be permissible almost everywhere. Such a world, however, would absolutely violate the fourth amendment. Else, the court should clearly outline what makes airports
special, which they haven't done.
I also think that they're doing some strange reasoning with the "administrative search." They've said that "the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack." That might be the primary
goal, but it's not the actual result. The actual result is a complete search for all illegal activity. I think that the court should have conducted their reasoning in light of that fact, as they have seem to do with other searches. In fact, they don't have any real test for that being a "primary goal" -- they just take the TSA at face value. But in fact, I would wager that the overwhelming majority (99+%) of persons arrested at TSA checkpoints have not been agents of terrorism. Given that fact, the reasoning about preventing terrorism as a primary goal seems extremely dubious. (Contrast that with breathilizer checkpoints on New Year's Eve, for example, or other kinds of administrative searches.)
I will note that the "you can choose not to fly" argument is not found in the decision.