Court: Naked Scanners Are Constitutional; But TSA Should Have Asked For Public Comment

from the can-they-x-ray-the-constitution? dept

This isn’t a huge surprise, as we said when the lawsuit was first filed, but EPIC has failed in its attempt to have the TSA’s naked scanners declared unconstitutional. The court seems to think the scans are just dandy, though it had some trouble with how they were implemented. There were two key legal points raised by EPIC. The first was that implementing the naked scanners without a public review violated the Administrative Procedures Act. The court seems sympathetic to this argument:

The TSA seems to think it significant that there are no AIT scanners at some airports and the agency retains the discretion to stop using the scanners where they are in place. More clearly significant is that a passenger is bound to comply with whatever screening procedure the TSA is using on the date he is to fly at the airport from which his flight departs. 49 C.F.R. § 1540.105(a)(2) (no passenger may enter the ?sterile area? of an airport ?without complying with the systems, measures, or procedures being applied to control access to? that area). To be sure, he can opt for a patdown but, as the TSA conceded at oral argument, the agency has not argued that option makes its screening procedures nonbinding and we therefore do not consider the possibility. We are left, then, with the argument that a passenger is not bound to comply with the set of choices presented by the TSA when he arrives at the security checkpoint, which is absurd.

In sum, the TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings.

Still… even then, it says that ordering the TSA to stop using the machines would “severely disrupt an essential security operation,” so it will not halt the use of the machines, even if it expects the TSA to begin holding public review of them.

The second key argument (there are a few other lesser arguments) is the Fourth Amendment claim. And here, the court just doesn’t see it.

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.

This is, again, not surprising, but disappointing. It’s rulings like this that allow for the gradual disposal of the 4th Amendment, by simply stretching the interpretation further and further each time, until there’s just nothing left at all.

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Comments on “Court: Naked Scanners Are Constitutional; But TSA Should Have Asked For Public Comment”

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Marcus Carab (profile) says:

“…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.”

Wow. Well, at least they have a clear-cut objective standard with no room for politicizing or over-interpretation… I mean, it’s similar to what the constitution says, right? “We hold these truths to be self-evident, except when promoting legitimate governmental interests…”

That Anonymous Coward says:

Can we all just go with the easy solution to stopping this?
Pornoscanners that Judges, Congresscritters, and Lobbyists have to go through and can not bypass.

I’ve pointed out before the problem with many of these laws and ideas is those who make the decision are so far removed from it happening to them they have no grasp of the real issues caused by them saying okiedokie do it.

Scott says:

Re: Response to: That Anonymous Coward on Jul 15th, 2011 @ 6:56pm

“pornoscanners” is kind of missing the point of the privacy that the 4th ammendment guarantees. There are no nudity or groping protections in the constitution. Your getting protection from cops poking through your house or personal effects.

Why aren’t you privacy nuts fighting against bag x-raying as well? How are they any different from body scans?

That Anonymous Coward says:

Re: Re: Response to: That Anonymous Coward on Jul 15th, 2011 @ 6:56pm

Because a bag is not alive.

There are actually no tests of the long term effects of pornoscanners.

These were quickly not well thought out responses to something horrific, and in the name of safety we are all supposed to accept them.

And the cops no longer need to poke around the house, they can access geolocation information from my cell phone, they can tap my phones, they can read my emails, they can put a GPS tracker on my car without a warrant. And none of these things actually make anyone safer, but they do add to the theatre of trying to make it the “Your with us or your a fucking terrorist” mentality. To question authority is a core principle we are supposed to do, but to disagree now is viewed as a crime and something to be questioned.

You do not think someone seeing a detailed picture of you naked, while exposing you to untold amounts of radiation that may or may not cause cancer is wrong. Your a lemming.

Borrowed from the thread about this over on BoingBoing

Milton Mayer, They Thought They Were Free, The Germans, 1938-45 (Chicago: University of Chicago Press, 1955)

“What no one seemed to notice. . . was the ever widening gap. . .between the government and the people. . . And it became always wider. . . the whole process of its coming into being, was above all diverting, it provided an excuse not to think for people who did not want to think anyway . . . (it) gave us some dreadful, fundamental things to think about . . .and kept us so busy with continuous changes and ‘crises’ and so fascinated . . . by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. . .”

“Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that unless one understood what the whole thing was in principle, what all these ‘little measures’. . . must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. . . .Each act. . . is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.”

“You don’t want to act, or even talk, alone. . . you don’t want to ‘go out of your way to make trouble.’ . . .But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves, when everyone is transformed, no one is transformed. . . .You have accepted things you would not have accepted five years ago, a year ago, things your father. . . could never have imagined.”

People who refuse to learn from history are doomed to repeat it. Or is all of the sudden concern about Sharia law just coincidental…
If you actually stop and look many of the things the Evangelicals push for are just their version of Sharia law. Laws given to them by their religious leaders… but we can’t seem to look past the be scared of brown people who are Muslim because they are all terrorists. We are all so scared of this all powerful boogeyman and we keep giving up everything we hold dear in a vain attempt to hold onto everything we just gave away in the name of being safe.

hegemon13 says:

Re: Re: Response to: That Anonymous Coward on Jul 15th, 2011 @ 6:56pm

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”

Hmm, I see nothing in there that says “…secure in their…as long as they keep their butts in their own houses…” Specifically, “persons” and “effects” particularly apply here. In fact, you are right about bag searches. They, too, should be illegal when performed by government agents without probable cause. And the fact that a person cannot opt out of the flight to avoid being accosted makes it even worse.

Nick Dynice (profile) says:

So let me get this straight. An attempt to detect someone who is trying to bring an explosive on a plane is not “crime control.? So, terrorism is not a crime. Also, searches of explosives are not done ?to detect evidence of ordinary criminal wrongdoing.?

So as long as there is “terrorism” there are two degrees of crime. All of the criminal laws on the books, due process, reasonable case, 4th and 5th amendment can thrown out. How convenient for a government set on trampling what supposedly made our county great.

Anonymous Coward says:

Re: Re:

Nick, the question isn’t if making a bomb is a crime. The court doesn’t say that. It says that administrative inspections (of all passengers) is there to stop such a crime from happening. The presence of the security (so called security theater by some) creates a situation where these crimes can no longer easily happen.

Basically, terrorists (home grown or otherwise) cannot just walk on the plane with a bomb. They cannot even just easily conceal it in their coat or taped to their bodies. As a result, flying is safer because these people cannot easily get on board.

The administrative inspection meets a valid government need (safe air travel).

It really isn’t the same as crime control at all.

The Devil's Coachman (profile) says:

Re: Re: Re:

So terrorism isn’t a crime? That seems to be the point of your last sentence. Insofar as “security theater” goes, it is not just “so called”, it actually is theater. It is a show put on to keep people’s minds off the reality that if someone is inventive enough, and determined enough, and is willing to sacrifice their own life, there is no reasonable expectation that their attack can be prevented. Add in the fact that a lot of foreign airports do not have anything approaching the US airport security, but nonetheless are flying to US airports every single day, and you have no such thing as a total defense against an attack.

The pornoscanners are there as theater also, since the operators regularly miss items during their own, internal audits, and on an astonishingly frequent basis. The whole thing is a poorly thought out joke, which the majority of the slack-jawed goobers in this country actually think is of huge value. Unfortunately, we seem to have become a nation of slack-jawed goobers, awaiting the next wondrous government pronouncement with eager anticipation. Their near-universal belief that flying is not a right, but a privilege, and therefore if the government mandates full cavity searches of randomly selected passengers, that is just fine with them. After all, they believe, if you have nothing to hide, than you should have nothing to fear.

I’m so glad I will never have a reason to fly again, for to be put through the endless insults to human dignity, with the presumption by the government of criminality of intent by each and every passenger, would be more of a sacrifice of my sense of self-worth than I could ever permit. So keep flying, and submitting, and participating in the notion that we are now a nation of meek and frightened little mice, who need protection from ourselves and various boogeymen, and your government will be happy to keep entertaining your delusions. The flying public’s lack of critical thinking capacity serves them well. Their paranoia seals the deal.

Nicedoggy says:

Re: Re: Re:

How many planes where hijacked around the world recently?

Specifically how many planes where used as weapons in Israel? one country that have severe security threats and that don’t use those body scanners and don’t touch people.

So people give up a little here, a little there for security and end up where exactly?

Anonymous Coward says:

Re: Re: Re: Re:

Perhaps you would want to explain the extensive, slow, and painful processes used in Israel to screen passengers, and explain how quickly Americans would be screaming “Racial profiling” at the very thought of it?

You may want to mention the armed guards on every flight, and so on.

Please, give us the other side of the story, so that it makes more sense.

AW says:


I’d rather they do away with security. Every thing that they put in makes me feel less safe. Seriously how hard is it to have security guards on 50% of the planes as undercover seriously could not be less intrusive or expensive. Security could learn something from bars and software, the less intrusive it is the more effective it is. Almost every person flying is NOT a criminal, doesn’t it seem like a lot of budget money wasted, since the bad people seem to still find ways around security…here’s a protip, they don’t wait in lines like the good people.

keiichi969 (profile) says:

Re: personally...

Not only that but think remember, the body scanner isn’t really useful for things like explosives. Its really only useful for finding things like guns, knives, etc.

And now that we’ve locked the cockpit door, what would the consequences be?

Pre-9/11 hijack: guy hijacks plane, diverts to Cuba, holds people hostage for 2-9 hours, situation over, almost everyone goes home. (yes, there were some massacres)

9/11 hijack. guy hijacks plane, crashes into building, killing everybody on board and many in the building.

post-9/11 hijack: “If you don’t unlock this cockpit door so I can hijack this plane and crash it into a building, I swear I’ll kill everyone back here!”

Now that we know what the terrorist/hijacker will do, the people will not just sit idly by and let him take over the plane.

So lets end this security farce, lets save the government a load of cash, and we can put all those TSA workers to work on things we actually need, like infrastructure repair. If they can grope my nuts, I’m sure they can wave a flag or handle a shovel.

Anonymous Coward says:

Re: Re: personally...

You said: “Not only that but think remember, the body scanner isn’t really useful for things like explosives. Its really only useful for finding things like guns, knives, etc.”

Me: Not true. The body scanned can detect almost anything that is stuck to the body, glued, or held in place. Explosive material would show differently on the scan than flesh and blood would.

As for your secured door theory, you miss out. You have a plane full of victims and a way to communicate to the cockpit. “Open the cockpit door or we start killing people”, or “Open the cockpit door otherwise we will pop the doors and start pushing people out”.

It’s remarkable what can happen. I don’t want to be the “or else” for anyone’s hijacking plans.

Nicedoggy says:

Re: Re: Re: personally...

After the epidemic of plane hijackings in the 70’s security got so good that nobody was hijacking anything.

Even 9/11 style of attack was attempted before on a Brazilian hijacking 13 years before 9/11.


September 29, 1988: a man hijacked a VASP Boeing 737-300 registration PP-SNT operating flight 375 en route from Belo Horizonte-Pampulha to Rio de Janeiro. He wanted to force a crash on the Pal?cio do Planalto, the official presidential workplace in Bras?lia. The pilot convinced the hijacker to divert to Goi?nia where an emergency landing was made. The hijack ended with 1 victim.


So looking at the other incidents someone could hijack a cargo plane and flown into a building, also there was the guy trying to blown up the plane with his undies, nobody stays in their seats and let hijackers do their thing anymore, it is just incredible what happens when people are motivated, they ignore the hazards and just do something they don’t stand by and let things happens is that not amazing?

Also full body scanners have limitations.


Simply put, scanners don’t work, said international security expert Edward Luttwak.

In a test conducted in Europe, German prison guards were instructed to sneak explosives past three different scanners, including the full-body X-ray machine currently causing such a furore in the United States, Luttwak, a senior associate at the Center for International and Strategic Studies, said.
“They did it with such ease that the Air Travel Association, IATA, said there is no case for scanners,” said Luttwak.

Source: US airport full-body scanner & pat-down ‘erode freedoms’, says Ralph Nader

Nicedoggy says:

Re: Re: Re:2 personally...


The study comes from leading University of California physicists Leon Kaufman and Joseph W. Carlson – who spearheaded the development of today?s medical imaging technology.

The authors even demonstrated how 40g of explosives could fit inside a ?pancake? shape taped to the abdomen that would be “virtually invisible” to the technology.

They also studied a widely-published image of a woman using the device and found that a gun taped to her side is only visible because her arms are lowered next to it.

Travellers must raise their arms when going through the scanners – meaning the item would be invisible.


Anonymous Coward says:

Re: Re: Re:3 personally...

Yup, it is POSSIBLE. It is also possible that they decide not to check granny’s diaper which has 40 kilos of explosives in it, because people get upset if they do that.

There are ways to get around almost any security system, none of them are made to be absolutely fool proof. But they are created in part to create a sort of gauntlet for possible terrorists that, when combined with the do no fly list, pre-flight checks, and other steps will make it very hard to get anything of scale on board.

As for the “virtual invisible” to the technology, it would require that the attackers know exactly what angle they will be asked to stand in the machine, and they would have to stand exactly straight – further, they would have to work with an explosive with the same density and reflectivity to those waves as the human body. Any difference will show up.

Sorry, but their “virtual invisble” is on par with “virtual impossible to get something on board”. Neither is an absolute, and anyone thinking we are talking absolutes here failed the basic concepts of security.

Jay (profile) says:

Re: Re: Re:4 personally...

And that’s the problem.

TSA is doing all of this at one time to hamper travel. It makes it more convenient for a bomber to cause mayhem right there in line, than on a plane.

That “gauntlet” makes it easier for terrorists to achieve their goal, which isn’t to succeed. It’s more or less to make people live their life in fear of that one attack.

The do not fly list has a number of false positive in it. First, the list is quite controversial. You have people on the list for nothing more than a stewardess’ vindictiveness. Or how about because your husband did so? What standards are being followed by placing a name on the list? We don’t know why someone is on the list or for what reason, so there is little transparency to adhere to. Hell, Mike could be on the list for having a blog critical of TSA. Who would know?

Those “other steps” need to be defined. I hate having a hassle or someone touching my junk because they feel the need to hamper me in my country of origin.

Anonymous Coward says:

Re: Re: Re:5 personally...

Jay, you get two choices.

You can “fear for your life” and live secure, knowing that everyone on your flight was checked, or you can “fear for your life” and have to pack heat to fly, because every nutjob in the universe is thinking about ways to blow up your plane – and nobody is stopping them from getting on board.

It’s not really a big selection of choices, but only one of them gets most people home in one piece. The other turns the US into a pack of vigilantes. Is that really going to help?

abc gum says:

Re: Re: Re:2 personally...

“You can’t open the outer doors while an airliner is in flight.”

Not after this guy did it.

“D. B. Cooper is the name popularly used to refer to an unidentified man who hijacked a Boeing 727 aircraft in the airspace between Portland, Oregon and Seattle, Washington, USA on November 24, 1971. He extorted $200,000[1] in ransom and parachuted to an uncertain fate.”

Aerilus says:

“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?”

By that logic if they find anything on you whether is be a kilo of coke or a block of c4 they shouldn’t be able to use it as evidence in a prosecution the government want so have its cake and eat it to while watching the common citizenry get violated. I say lock the cockpits and give every one tasers it will sort it self out.

Anonymous Coward says:

Wolfowitz started the decline of rights in this country (let’s nuke ’em because we don’t like what they are thinking and we’ll spin it as being pro-active). Wolfowitz, Gingrich (“Contract on America”), and “W” sure dragged the country down economically, morally, and eroded our freedoms. Can you imagine our founding fathers going through TSA security? I’d be willing to be there wouldn’t be a TSA agent left standing. Of course, TSA would have a stronger position if they’d ever caught anyone or stopped anything, but the tasers in seat pockets, the loaded ammunition clips in seat pockets, the two-time NYC-LAX stow-away, the theft rings, etc., etc., etc. don’t help them at all. We need to throw away TSA and start over on security.

Thomas (profile) says:


the courts now deciding that Constitutional protections can easily be ignored to protect against “terrorism”, the government can now pretty much do whatever they want.

The courts say it’s fine for TSA agents to fondle underage children, but if they did that on the street they would be in prison for a long time. Wonder if the TSA allows convicted child molesters to apply for jobs since they would have the right experience?

Does anyone remember history? Look into how Hitler got total power in Germany.

OneSeraph (profile) says:

Those unwilling to die for their liberty


?Those unwilling to die for their liberty are not worthy of their life or they?re liberty.?

I find people who support the current actions of the TSA to be a bit funny. If we look at air travel safety over the last 20 years we notice something conspicuous. We are no safer from hijacking or terrorist attack now than we were 20 years ago. So what we are really spending all this money on the TSA for is to make us feel better without any actual improvement in our safety. I guess some people just feel safer when their rights are stripped from them. Maybe they just like the idea of children being molested by the government. Maybe they secretly would like to be grouped or have a little porn shoot of themselves. Maybe they are so afraid, cowardly and stupid that they don?t realize they are giving up the very thing that has made most of us proud to be American and people all over the world strive to become American. What is this amazing thing? Well it is simple, the bill of rights.

?Oh, wait this isn?t funny it?s sad and it?s tragic.

If you are so afraid that terrorist might harm you while traveling by air ?don?t fly?. That said; don?t put your desire for air transportation in front of my liberty. Oh, and by the way you are more likely, to be struck by lightning twice than you are to be a victim of a terrorist. You are 150 times more likely to die in an accident on the way to the airport then to be a victim of hijacking.

This is what we get when activist judges are appointed to our courts. These so called conservatives who claim to want smaller government while at the same time they create, pass and uphold laws and legislation that allow the government ever more reach into and control over our private lives. This latest TSA verdict should come as no surprise to anyone who has been following the court in its current makeup. There have been a slew of 5 to 4 decisions that have come from the court that have seriously eroded the bill of rights. These 5 activist conservative judges have clearly been making decisions based on ideology rather than interpretation of the spirit of the law. In this case the bill of rights which is a document the founders created with the expressed purpose of protecting the people from an overreaching government ?not terrorist?. I say we stop calling them conservatives and describe them as the outcomes of their decisions dictates. They are in fact Fascists. Some may regard that statement as offensive. Don?t shoot the messenger, I am simply describing their actions as it relates to a political system that strips the rights of the people and concentrates it in the hands of the government or other controlling bodies (like corporations) ?citizens united? anyone. That said, I have exercised my right to describe these destroyers of liberty for what they are in my opinion. So that I am clear, I believe they are tyrannical, treasonous, fascist scum.

Ya; I know, it’s a bit of a rant. But isn’t that what this is for?

hmm (profile) says:

I know why

I know WHY the TSA does such strict patdowns.
They are making sure the maximum number of passengers survive a crash by ensuring only the juiciest tenderest people get beyond the security gates so in the event of a crash there’s plenty of meat for the survivors to munch on whilst they wait for rescue!

Didn’t you notice after your patdown, they record info on a little handheld? its basically who would go well with a stick of butter and who’s best off being spit roasted.

Obesity FTW or something………………

Gene Cavanaugh (profile) says:

4th amendment argument

Good analysis, and I do think the Constitution is under attack from our own government, but here I beg to differ.

The Constitution has never been interpreted to interfere with normal government functions. Are the TSA procedures “normal”? I would argue they are abhorrent, but as phrased by the court, they do pass Constitutional muster.

hmm (profile) says:

the answer!

Have two flights!!!

One flight is full of passengers that have been sexually assaulted (and raped afterwards just to break their spirit!), the other is full of happy passengers willing to spend money on the aircraft and have a good holiday because a fat TSA guy DIDN’T get to shove his pinky into their anus and asking if there were any terrorists up there.

When everyone get to see BOTH planes didn’t suddenly get hijacked/crash into the ground in a screaming ball of wreckage then add up the wasted TSA salaries, perhaps we’d see change.

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