Federal Appeals Court Rules in Favor of Digital Strip Search Machines

I've written extensively on the topic of the expanding use of airport body scanners ("digital strip search"). For my most detailed op-ed on the subject, you can check out my November piece in the California Progress Report entitled "A  Hobson's Holiday Travel Choice: Digital Strip Search or Get Groped" in which I explain the many reasons these airport body scanners and the subsequent aggressive pat downs for those that choose that "option", are grossly ineffective, intrusive, expensive, and unnecessary."

Not helping the argument for these scanners use are the hordes of security industry lobbyists seeking to pimp these out across the country through the usual fear tactics associated with our surveillance state. The end result in this case is the expenditure of billions in taxpayer dollars on fear driven TSA body scanners that violate American's privacy (with the choice of aggressive pat downs for those that choose that "option") while doing next to nothing to actually prevent terrorism (a miniscule likelihood in and of itself).

Unfortunately, last weeks a Federal Appeals Court ruled against the Electronic Privacy Information Center (EPIC) - which had asked the court to block usage of the devices — "of which 500 more are to be rolled out this year — on grounds that they are an unconstitutional privacy invasion, ineffective and unhealthy to airline passengers."

 

But, the news wasn't all bad. Wired Magazine has more:

The court said that, whether an administrative search is unreasonable, is a balancing test on how much it intrudes upon an individual’s privacy, and how much that intrusion is needed for the promotion of “legitimate” government interests.

“That balance clearly favors the government here,” the court ruled 3-0. The court added that an “AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard explosives in liquid powder form.” The three-judge appellate panel did not address limited research suggesting that the machines might not detect explosives or even guns taped to a person’s body.

However, the appellate court, which is one stop from the Supreme Court, said that the Transportation Security Administration breached federal law in 2009 when it formally adopted the airport scanners as the “primary” method of screening. The judges said the TSA violated the Administrative Procedures Act for failing to have a 90-day public comment period, and ordered the agency to undertake one.

....

Judge Douglas Ginsburg, writing for the majority, said the TSA must allow for the 90-day notice-and-comment period because of the new “substantive obligations” on airline passengers. “It is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not. Therefore, regardless whether this is a ‘new substantive burden,’ the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking, Ginsburg wrote.

...

Marc Rotenberg, the president of EPIC, the group that brought the challenge, said the decision means the “TSA is now subject to the same rules as other government agencies that help ensure transparency and accountability.” He said “Many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law.”

Click here to read more.

Clearly its a good thing that the public will finally have at least a semblance of a "say" in all this - something denied from the outset. I find it interesting however that the court did not take into account the fact that these scanners DON'T WORK! I also would like the court to address the actual likelihood that someone will be killed while flying in a plane (a fraction of the chance you'll be hit by lightning) - or better, whether these scanners would have made any difference if one is killed?

I've always been rather amazed how little these questions ever seem to come up in this debate. You know, questions like the actual threat posed by a terrorist attack, and the actual effectiveness of these scanners to stop it? 

Here's a larger concern however. If we allow such technologies to be used in every airport on passengers that have done nothing to rouse suspicion, we should also wonder whether such usage will expand into other public spaces? A few months ago the USA Today expanded on this concern, indicating that it was the Department of Homeland Security that was particularly interested in developing "covert body scans" of the public at large.

The fact that there seems to be such intent on expanding, not reducing, the use of this body scanner technology on the public (who have no reason to be under suspicion) doesn't surprise me of course, but it does send off alarm bells. The admittedly hackneyed term "slippery slope" certainly comes to mind, just as other "surveillance state options" being looked into by the Department of Homeland Security, from video surveillance to GPS tracking.

 

As I have written here before, you will find few credible security experts that will advocate for greater use of these machines. So before embracing this latest "terror fix" we would do well to remember that for every specific tactic we target with a new, expensive, and often burdensome security apparatus, the terrorist's tactics themselves will change. Risks can be reduced for a given target, but not eliminated. If we strip searched every single passenger at every airport in the country, terrorists would target shopping malls, trains or movie theaters instead.

Add to these points the fact that these naked images of passengers seem to be everywhere, are easily stored and shared, and that big corporations that profit off our fear are lobbying hard for us to invest in them without proving they're worth the money, and it only becomes more apparent we should scrap them.

Fear is not a principle to build a healthy society around, particularly when those very fears are being magnified by those that have ulterior motives (including financial) for doing so.