Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Is full-body scanning at the airport constitutional?

July 28, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today’s topic: airport scanners and privacy.

The constitutional claim:

“The TSA’s body scanner program violates the Fourth Amendment…The TSA subjects all air travelers to the most extensive, invasive search available…The TSA rules require individuals to submit to a digital strip search that is maximally intrusive.”

- Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided by the D.C. Circuit Court of Appeals, July 15, 2011.

The constitutional response:

The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation's airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety.  In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge.

Airport security (Flickr photo by redjar)

Full-body scanners are now in use at more than 80 U.S. airports and are destined for all domestic air terminals as the primary screening method, replacing magnetometers.  A passenger who objects to this imaging can choose a physical pat-down.

From the time the government began using full-body imaging four years ago, there have been strong protests that the technology invades personal privacy and is unconstitutional under the Fourth Amendment.

While challengers usually do not contest the government’s power to have some screening method for air travelers, they argue that full-body imaging – at least when it is the primary screening technology used -- goes beyond any legitimate need because less-intrusive techniques are available.

Challengers contend that even a search that is necessary for public safety cannot be so sweeping that it invades a right to privacy under the Fourth Amendment.   If some other method would detect weapons or explosives, scanners are unconstitutional, or so the argument goes.

Teacher's corner

In public spaces that demand the intrusion of some privacy in order to maintain safety, how do we negotiate this balance? In terms of the recent changes in airport security, how persuasive is the protection-against-terrorism argument?

In its challenge to the Transportation Security Administration, EPIC, a digital-age privacy group, aimed its constitutional argument at the technology’s use as first-level screening, without any prior alert.

While the Circuit Court’s three-judge panel rejected the Fourth Amendment challenge, its ruling might not be the last word.  It postponed its decision to give EPIC a chance to ask the full ten-judge bench to reconsider.  And, of course, EPIC has the option of taking the issue on to the Supreme Court.

The key to the circuit court’s constitutional ruling was to treat airport screening as what is called an “administrative search” – that is, a government search that is not aimed at gathering evidence of crime, but to serve other purposes, such as public safety.   Prior court rulings give the government greater power to do such a search.

Airport screening, the court said, is designed “to protect the public from a terrorist attack.”  That interest, it said, is to be balanced against the degree to which a search invades individual privacy.  The court struck the balance in TSA’s favor.

Full-body scanners, it concluded, can detect and thus deter “attempts to carry aboard airplanes explosives in liquid or powder form.”  That is a vital government goal, it noted.  On the privacy side, the court said TSA had taken a series of steps to minimize the intrusion – especially, the use of filters to distort the image, and a device that promptly erases the image.   Moreover, it said, the passenger is given the choice of a pat-down.

On one point, however, EPIC prevailed: the circuit court ruled that TSA should not have adopted the new technology without first soliciting public comment. It told the agency to reconsider promptly, but did not interrupt the use of scanners in the meantime.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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