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Federal Appeals Court Rejects 4th Amendment Challenge To TSA “Nude” Image Scanners

A Federal Appeals Court in D.C. has rejected a challenge brought by the Electronic Privacy Information Center alleging that the TSA’s use of body imaging scanners at airports was a violation of the 4th Amendment:

A federal appeals court on Friday unanimously declined to block the government from using airport body scanners across airports nationwide, saying it is “not persuaded by any of the statutory or constitutional arguments” against them.

The U.S. Court of Appeals for the District of Columbia Circuit was deciding a constitutional and procedural challenge to the Advanced Imaging Technology “nude” body scanners, which began rolling out in 2007 and are deployed to at least 78 airports nationwide. The Electronic Privacy Information Center 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.

“The petitioners argue that using AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives,” the appeals court noted. “As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an ‘administrative search’ because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.”

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 Federal Government did lose a minor point in the case, but it was a technicality, it will not require the TSA to remove the scanners from airports or significantly delay their plans for installing more of them:

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.

Generally, under the APA, agency decisions must go through what is often termed a “notice and comment” period if their new rules would substantially affect the rights of the public — in this case air passengers. The Environmental Protection Agency often undertakes “notice and comment” periods for proposed pollution regulations.

The court did not penalize the TSA for its shortcomings. The TSA argued to the court in March that a public comment period would thwart the government’s ability to respond to “ever-evolving threats.”

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.

“Indeed, few if any regulatory procedures impose directly and significantly upon so many members of the public. Not surprisingly, therefore, much public concern and media coverage have been focused upon issues of privacy, safety, and efficacy, each of which no doubt would have been the subject of many comments had the TSA seen fit to solicit comments upon a proposal to use AIT for primary screening.”

Despite the error, the court would not stop scanner usage. Doing so, Ginsburg wrote, would “severely disrupt an essential security operation.”

What this means, basically, is that the TSA will be required to provide notice of its plans regarding the scanners in the Federal Register and the public will have the opportunity to submit comments on those plans to the relevant authority for a 90 day period. The agency then issues a final rule and provides a response to the issues raised by the public comments. There is not necessarily a requirement that hearings be held. Since the Court has essentially sided with the TSA here and, for the reasons I’ll note below, the Supreme Court is likely to as well if the case is appealed, it seems unlikely that following this process will have any significant impact on the implementation of the TSA’s plan to introduce the scanners to more airports.

The Fourth Amendment analysis in the opinion, which was written by Judge Douglas Ginsburg (a Reagan appointee) and joined by Judges Karen Henderson (appointed by George H.W. Bush) and David Tatel (appointed by Bill Clinton), was, as Orin Kerr notes, surprisingly sparse and only takes up two pages of the 18 page opinion. Here’s the meat of the argument:

[T]he petitioners argue that using [Advanced Imaging Technology] AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives. In view of the Supreme Court’s “repeated[] refusal] to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment,” City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010) (internal quotation marks omitted), and considering the measures taken by the TSA to safeguard personal privacy, we hold AIT screening does not violate the Fourth Amendment.

As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. See United States v. Aukai, 497 F.3d 955, 958-63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178-81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499-501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dept of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47-48 (2000) (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports … where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118-19 (2001) (internal quotation marks omitted).

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47-48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a pat down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. 436 F.3d at 175-76. The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.

Kerr comments:

It’s a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn’t even think it required any heavy lifting — just a quick paragraph or two. And notably, no one wrote separately. That’s particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.

I’m not sure much more analysis was required. Once the Court determined that airport searches are administration searches rather than searches for the purposes of a criminal investigation, the grounds on which it can be subjected to a 4th Amdendment challenge narrow significantly. In fact, that remains true even when something is found in a TSA search that is unrelated to airport security, but which becomes the grounds for a criminal prosecution for some other reasons. For example, in United States v. Aukai, the 9th Circuit rejected the 4th Amendment challenge of a Hawaii man who had been arrested after methamphetamine was found during a TSA search (before the era of body image scanners) at the Honolulu Airport. In that case, the Court said the following:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”  United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973);  see also United States v. Hartwell, 436 F.3d 174, 178 (3d Cir.), cert. denied, 549 U.S. 945, 127 S.Ct. 111, 166 L.Ed.2d 255 (2006);  Marquez, 410 F.3d at 616.   Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent 4 or irrevocable implied consent.5

The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world.6  Such a rule would afford terrorists 7 multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found.   This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.   Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory.   Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area 8 of an airport.   See Biswell, 406 U.S. at 315, 92 S.Ct. 1593; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine.9  The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.

The fact that Aukai was dumb enough to voluntarily submit himself to search at an airport while having an illegal drug on his person and easily discoverable by said search was, essentially his tough luck.

It strikes me that the Court is probably correct here, at least on the law. The Commerce Clause clearly gives the Federal Government the power to regulate interstate air travel and to establish security standards to be applied to people who would board an airplane. Under the circumstances of the day, it is simply inconceivable that any Court would find that such authority does not exist. Given that, and given that these searches are clearly administrative, the only standard that truly applies  is whether the methods used are reasonable. Based on the law at least, I don’t think there’s a good argument to be made that the imaging scanners, with the privacy protections that the TSA has implemented, are unreasonable.

EPIC is likely to appeal this case to the Supreme Court, but it seems unlikely that they’ll have much better luck there. Over the past two decades or so, the Court has broadened the discretion of law enforcement under the 4th Amendment, given that it seems unlikely that they’d find something like this to be unconstitutional. If you want to fight the imaging scanners, you’ll have to go through Congress, not the Courts.

Here’s the opinion (although be warned that 14 of the 18 pages deal with the Administrative Procedures Act issues):

Electronic Privacy Information Center et al v. Dept. of Homeland Security et al

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    Amusing side note for those under a certain age: Reagan appointed Ginsburg to the Supreme Court in 1987 but he withdrew under controversy stemming from marijuana use while a professor at Harvard.

    I’m dubious of the administrative vs. criminal purposes. A plain reading of the 4th Amendment is that a warrant is required for “searches,” period. But I agree that this is essentially settled law. Frankly, the 4th Amendment is damned near a dead letter given how narrowly it has been construed over the years.

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  2. JKB says:

    The way to fight these scanners is to get the images, of government officials, celebrities, etc. then do the image manipulation to transform them into the positive recognizable image of the person. Post those online and cause a backlash. Of course, initial reaction would be to afford special no scan privileges but that could be turned to the protest advantage.

    They aren’t following their stated procedures of not storing images, so these types of images will make it into the wild so it is only a matter of time.

    Internet, start your graphics engines.

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  3. Did this case examine the health risks associated with the machines?

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  4. Jeff Buske says:

    @Stormy Dragon: For good reason TDS/DHS and media is quiet on the health risk the dose is small but, not insignificant. I syspect we “passengers” are traveling in commerce like cattle in a DOT truck or government “Chattel” property and in the eyes of the “law” we are considered animals so radiation experiments, vaccines and medicated fluoridated water are considered legal? Perhaps EPIC needs to change it’s approach sadly 4th, 5th, 6th and 14th are about gone… America has lost its way.
    Also the scanners look under the skin (bones are visible with backscatter) the scan should rightly be considered a prescription medical procedure. See links below:

    http://www.rockyflatsgear.com/Airport-Back-scatter-Scanner-Dose-Explained.html

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  5. @James Joyner:

    Amusing side note to your side note. Ginsburg stayed on the bench, obviously, and by the time I started law school in 1990 he was teaching a 3rd year seminar in Antitrust Law. Unfortunately, he took a sabbatical for two years by the time I reached 3L.

    SCOTUS has always made distinctions between searches for administrative purposes (i.e., an inventory search of a car when it is impounded by the police for parking illegally) and searches for the purpose of investigation. I think there’s a reasonable argument to be made for this, especially when you are dealing with searches for the purpose of safety such as the ones that you will encounter at any Federal Courthouse or at the airport. Police are also authorized to carry out a “pat down” search of someone before they begin questioning, as long as the reason they stopped said person is supported by reasonable suspicion. As a general principle I’m not sure that requiring a warrant in these circumstances is what the Founders had in mind.

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