EPIC Lawsuit to Suspend Deployment of Body Scanners at US Airports

I'm with the GP, and we do better than merely saying it to the airlines: we vote with our wallets.

Given the recent comments by air industry bigshots in the UK, it appears that they're starting to get the point, too.

Nationality may be irrelevant, but a US border setting certainly is not. As a rule of thumb: you have drastically diminished rights at the US border.

I might agree for myself, but what about our wives and children? We simply can't allow it.

My guess is they're going to get shellacked.

The first thing you have to understand here is that the constitutionality of airport searches isn't in question. SCOTUS has upheld a doctrine of "administrative searches", taken in order to advance public safety rather than criminal investigations, which are explicitly intended to apply universally, without a warrant, and without individualized suspicion.

The second bit of background you should have is 49 USC 44925, which mandates that the TSA research and deploy advanced screening technology, specifically to detect nonmetallic objects. I'm no lawyer, but I do enjoy reading SCOTUS civil liberties opinions, and by and large the court seems to give deference to the legislature when no clear constitutional issue is at stake. In sum: the court has an "out" here, which is "the intent to search passengers is already constitutional, so if this variant of the search is so bad, pass a law".

The Supreme Court has not outlawed strip searches (obviously they can't, as virtually everyone who gets arrested and booked is strip searched, guilty or not). If you read the Savana Redding opinion (8-1 "it's unconstitutional to strip search an 8th grade girl for ibuprofen"), you'll see things like "Its indignity does not outlaw the search, but it does implicate the rule that "the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’". That is, unfortunately, not a hard case for TSA to make. The fact that the Savana search was for "nondangerous contraband" also factored into the opinion.

(If you want to throw up in your mouth a little bit, track down Clarence Thomas' dissent which argued that it is indeed constitutional to strip search a 13 year old girl in school to track down Advil.)

Finally, the arguments EPIC makes here do not seem awesome. Part of their argument turns on administrative rulemaking procedures at TSA, which TSA seems to dismantle efficiently in their response. Other parts drag in things like the Religious Freedom Restoration Act, which is (a) a longshot argument for petitioners who can claim no personal religions infringed on and (b) is neatly sidestepped by the TSA "opt-out" rule. Speaking of opt-out: EPIC claims that there is no effective opt-out procedure, which is also a hard argument to defend without an example of someone refused an opt-out. And on this janky scaffold of arguments, EPIC wants an emergency injunction against the scanners?

Don't get me wrong, I'm obviously in their corner on this. I'm thrilled if they win. And they've got some painful evidence, such as FOIA docs showing TSA required machines with store/transmit capabilities (oops!). But my guess is that if we want to get rid of the strip search machines, we're going to have to do it by voting out the people who approved them.

On that note, who says only two sides can play the "think of the children" card? To demonstrate otherwise, I'm going to make a third side which says that naked children aren't inherently that big a deal, and that greater harm comes from the implicit sexualization of children, and the paranoia about sexual predators that it causes. I don't really mind backscatter machines in airports; I find them funny and entertaining, if only for the vaguely Caramelldansen-like hands-above-the-head pose they had me assume last time I went through one.

What does bother me is how every time there's a sensational incident -- a terrorist attack, or someone getting kidnapped, or whatever -- people start screaming for someone in the government to DO SOMETHING!!1, and we end up spending an inordinate amount of time and resources guarding against something that happened once and isn't too likely to happen again. Smart terrorists would stay the hell away from airports; they'd get a higher marginal return on their efforts if they went for easier targets like sports stadiums or crowded subways. And if that starts happening, what are we going to do? Put backscatter machines and security guards everywhere? Completely sacrifice all privacy to assuage our fears about the most unlikely events, while neglecting the real killers, like car crashes and cancer?

So to hell with it. Go ahead and make me remove my shoes at the airport and strike a ridiculous pose in a backscatter machine; I'll just laugh it off. What worries me is the preposterous irrationality, and where it'll lead if we give it free rein for long enough. Won't somebody please think of the children?