A privacy rights advocacy group told appellate judges Thursday that the use of full-body scanners as a first line of defense at airport security checkpoints is an "unreasonable search" in violation of passengers' civil rights.
The Electronic Privacy Information Center wants to stop the Transportation Security Administration from using the scan that shows a naked image of a passenger's body as a primary means of screening. EPIC says the policy is a violation of the Fourth Amendment to the Constitution and laws protecting privacy and religious freedom and is asking the U.S. Court of Appeals in Washington to require the agency to make a new rule with input from the public before it goes into effect.
The government responds that it has privacy safeguards in place, such as measures to protect travelers' identity from agents viewing the images, which it says make the searches reasonable and "minimally invasive."
Government attorney Beth Brinkmann told the three-judge panel hearing the first oral arguments on the case that Congress has given the TSA responsibility to protect the traveling public from evolving threats using the latest technologies and "should not have to stop every five minutes for comment and rulemaking."
The judges showed some skepticism that they have the authority to require TSA to make a new rule and noted that passengers can always choose a pat-down from TSA agents instead of going through screeners.
"No one is required to do full-body scanners," Judge Douglas Ginsburg pointed out.
According to TSA, fewer than 2 percent of passengers sent to the scanners, now in use at fewer than 100 airports, are opting out in favor of the pat-down. EPIC attorney Marc Rotenberg said that in some cases that may be because passengers don't realize they have the alternative as they are being steered to a full-body scanner, also known as automated imaging technology, or AIT.
At times the judges also expressed concerns about how far TSA can go. Judge David Tatel wondered whether the impact of body scanners on travelers is so severe that the public should have been able to comment before the scanners went into primary use. Tatel and Judge Karen Henderson questioned whether the TSA would be within its authority to determine one day that the security threat required that all passengers be strip searched.
Brinkmann said TSA could make such a determination without public input, as it did with the body scanners. But she said both are subject to the court's review, and in the case of the strip search, "I think you'd have an overwhelming Fourth Amendment claim."
The case follows a series of Freedom of Information lawsuits in which EPIC obtained the technical specifications for the devices and hundreds of complaints about the airport body scanner procedure. EPIC doesn't object to scanners as secondary screening when there's cause for a more careful examination of specific passengers or for passengers who prefer their use because of prosthetics or other devices that routinely set off metal detectors.
Brinkmann said new, more modest software being tested in U.S. airports will alleviate many privacy concerns. Instead of showing naked images, it will have a generic outline of a human figure and point out an area of the body where an object may have been detected. But Rotenberg said the devices still have the ability to store and record naked images of travelers.