The Constitutionality of TSA Body Scanners

So it looks like the Transportation Safety Administration body scanner debacle has yet to die down.  And there seems to be no end in sight.  This is due not only to the many people continuing their creative protests against the intrusive scanning procedure, but also because the TSA itself doesn’t seem to know anything about public relations.  If anyone out there happens to know the geniuses over at the TSA Blog, have some mercy on them and pass along this tip: fighting bad press, even if it’s of the satirical variety, by responding to it only makes it worse.  It also doesn’t help if other people talk about it too, but that situation is more out of a person or organization’s control.

Sen. Charles Schumer’s weigh in is the most recent news story to be added to the ever-growing TSA press pile.  Sen. Schumer is proposing a new law that would make it a federal crime to illegally record or distribute any images procured via the new TSA body scanners.  Despite being an easy way for an elected official to score brownie points with the public, the obvious bill is a good method to deter misuse.  However, at the same time it doesn’t necessarily fix the problem of still having to be viewed naked by a group of strangers.  Though the TSA would like us to believe their safeguards (such as having the images automatically deleted after viewing and that they’ll be screened in a separate room thereby preserving passenger anonymity) will protect the public’s privacy, the fact of the matter is that they don’t account for jerks who work for the TSA.  For instance, what’s to stop a group of unsavory TSA screeners from alerting their friends in the screening room when Angelina Jolie or Christina Hendricks is walking through the scanners?

More importantly, however, what Sen. Schumer’s new law, and for that matter every other new and politically safe legislation that works along the same lines, fails to address is the sheer unconstitutional nature of the TSA’s scanners.

We’ve touched on this issue before, however we’ve yet to discuss on this blog whether the TSA scanners would survive judicial review.  And the answer is no.

The Fourth Amendment of the US Constitution protects citizens from unlawful searches and seizures. Unlawful in this context means that if it’s done without a valid warrant, then the search or seizure violates our constitutional rights under the Fourth Amendment.

Under judicial review, the first question we would have to address is whether scanning at this level constitutes a search.  The case which tells us how to do this is Katz v. US, which basically states that a search occurs when the governments conduct violates a person’s subject expectation of privacy as well as an objectively reasonable expectation of privacy that is accepted by the public.

In this situation, it’s pretty obvious that the scanner would be a search under both criteria.  People wear clothes to protect prying eyes from seeing them naked and I’m pretty sure that protecting one’s nude body from public view is probably a reasonable expectation of privacy to most everyone in America.  Ironically, the recent spate of protestors entering the scanners in their underwear would probably be viewed as not exhibiting a personal expectation of privacy since, you know, they’re half-naked for all to see.  However, even then these protestors could make an argument that they still have a personal expectation of privacy that should be respected because they weren’t completely in the buff, thereby indicating they didn’t want the scanners to see their privates.

Anyway, the scanner technology itself also implicates the Fourth Amendment because under Kyllo v. US, use of technology that enhances senses beyond what’s humanly possible can also constitute a search when that technology is used to monitor citizens.  Here, the scanners allow TSA agents to see through clothing.  And last time I checked, human vision can’t see through solid objects.  Though an argument can be made that since human eyes can see the bumps and curves underneath clothing, the scanners merely provide an extension to human vision.  And this would be a good argument, except for the fact that making out a person’s curves based on the fit of their clothing isn’t the same as being able to see EVERYTHING.

So at least to me it would seem that the TSA body scanners constitute an unwarranted search, which means that it’s a violation of our constitutional rights.

And what does all this mean?  Our elected officials suck.

As always, let me know what you guys think.  Blog comments are the spice of life.