http://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.htmlThe TSA is invasive, annoying - and unconstitutional
by Jeffrey Rosen, a law professor at George Washington University
One advocacy group, the Electronic Privacy Information Center, has already filed a lawsuit, calling the body scanners unconstitutional. Could this challenge succeed?
Courts evaluating airport-screening technology tend to give great deference to the government's national security interest in preventing terrorist attacks. But in this case, there's a strong argument that the TSA's measures violate the Fourth Amendment, which prohibits unreasonable searches and seizures.
Although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.' "
In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both "minimally intrusive" and "effective" - in other words, they must be "well-tailored to protect personal privacy," and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate "in invasiveness only after a lower level of screening disclose(s) a reason to conduct a more probing search."
As currently used in U.S. airports, the new full-body scanners fail all of Alito's tests.
