Legal issues surrounding backscatter screening at airports

Terrorism

After September 11, the Department of Homeland Security and the Transportation Security Administration ramped up airport security in the interests of preventing terrorism. One of the most controversial methods the TSA used was to implement new passenger screeners. Although X-ray and backscatter technologies had been used in high-security government agencies, they had not been used on a large scale for the general public until after September 11 (Mackey, n.d.). The use of backscatter technology in airports raises a host of questions about their efficacy, their ethics, and their legality. The Electronic Privacy Information Center (EPIC, 2010) filed a lawsuit to cease and desist in the implementation of all three-dimensional body scanners at airports on the grounds that the scanners are "unlawful, invasive, and ineffective," (EPIC). In particular, EPIC (2010) claimed the backscatter and similar devices violate the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, and the Fourth Amendment. Among the specific concerns about backscatter technology is that it is highly invasive. "Clothes are rendered transparent," and the technology is powerful enough that it allows the operator to "literally count the hairs on a man's chest or measure the depth of a woman's navel," (Mackey, n.d., p. 229). It is no small coincidence that the company that manufacturers the devices is called Rapiscan.

The primary legal issue is whether Rapiscan devices violate the Fourth Amendment rights to no unlawful or unwarranted searches and seizures. Mackey (n.d.) claims that when the scanners are thoroughly evaluated in context of legal precedent, they do not constitute a violation of Fourth Amendment rights. Mackey (n.d.) provides two reasons why the backscatter devices are not used in violation of Fourth Amendment rights. The first reason is that they can easily be presented as a condition of airline travel, "converting it into a voluntary search to which a person knowingly and voluntarily submits to as a condition of travel on a commercial aircraft," (Mackey, n.d., p. 229). Second, the Fourth Amendment rights are not absolute. The courts can decide what constitutes a lawful search and seizure, especially when legal precedent for a similar situation can be established.

As Mackey (n.d.) points out, precedent is on the side of the scanners. Traditionally, the courts take a more liberal interpretation of the Fourth Amendment when the situation takes place outside of the home -- helping to substantiate the use of backscatter technology in airports. Moreover, the backscatter technology is not qualitatively different from the other types of invasive searches that are legally used in contexts deemed "reasonable," such as border crossings. Some cases establish precedent with regards to the individual offering consent to the search, which certainly applies in the case of the airport scanners. A person who does not wish to fly does not have to submit to the scan; the person who does wish to fly willingly concedes that a scan is required.