TSA Body Scanners Constitutional, Rules D.C. Cir.

By Stephanie Rabiner, Esq. on July 19, 2011 | Last updated on March 21, 2019

Are TSA body scanners constitutional?

In a long-awaited decision by the D.C. Circuit, the court affirmatively ruled last week that the controversial technology does not run afoul of the Fourth Amendment's prohibition against unreasonable searches.

However, it did find that the Transportation Safety Administration wrongly failed to consider the public's opinion of the new technology, ordering it to issue a notice of rulemaking, and accept public comments.

Suing the Department of Homeland Security on behalf of citizens, the Electronic Privacy Information Center (EPIC) argued that the full-body scanners are overly invasive, and thus are unreasonable searches under the Fourth Amendment.

Airport screenings, because they seek to ensure safety as opposed to ascertain criminal behavior, are considered administrative searches as opposed to criminal searches. They are thus held to a different constitutional standard.

In determining their reasonableness, a court must balance the intrusiveness of an administrative search with its ability to further a legitimate governmental interest.

In determining that full-body scanners are reasonable, the court pointed to the "acute" need to ensure airline safety, and the fact that the body scanners can detect liquids and powders.

This need, along with the TSA's attempts to protect passenger privacy, balances out any intrusiveness.

Recall that passengers may opt out, and that images are viewed in a private room without cameras and then immediately deleted.

Even though airport body scanners are constitutional, in light of the court's finding that the TSA violated the Administrative Procedure Act, the agency must now open itself up to public comments on the scanners. This, however, is unlikely to incite a change of policy.

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