Appeals Court Confirms TSA X-Ray Strip Search Validity

The US Court of Appeals for the DC Circuit has confirmed that criminals and suspected criminals have more rights and more protections under the Fourth Amendment than do citizens who want to fly.

Judge Douglas Ginsburg, in Electronic Privacy Information Center v. TSA, wrote that (pdf) airport searches are different than evidence searches. Airport searches fall under the legal, but not necessarily moral, category called “administrative” which require no evidence or suspicion of wrongdoing on the person or persons undergoing the search.

Whereas criminal searches require sufficient suspicion of wrongdoing, in some cases suspicion strong enough to require a warrant from a court before a search can be conducted. It is Judge Ginsberg’s opinion that as long as a criminal does not fly, he can be assured that he will not suffer unreasonable search and seizure.

Unless that criminal happens to be in the wrong place at the wrong time and runs into one of TSA’s “Viper” or “THOR” teams, which are mobile, non-airport bands of armed agents stopping citizens in any old place. Judge Ginsburg did not mention the Viper and THOR teams.

Judge Ginsburg commented on the X-Ray and backscatter machines that irradiate citizens in an effort to search for non-suspected armaments, which are defined as “nonmetallic, chemical, biological, and
radiological weapons, and explosives, in all forms.” Judge Ginsburg showed no appreciation of the extreme, indeed undefinable, breadth of “all forms” of weapons.

The Judge also appeared to have no recognition that the “studies” conducted by the TSA that purportedly demonstrate the safety of the irradiation searches could be flawed and that it is possible that harm to some is possible.

The Electronic Privacy Information Center did not do a stellar job in arguing their case. EPIC had the good idea to invoke the Muslim religion’s proscription on third-parties viewing nude Muslim females, but they forgot to bring a Muslim woman with them to court. Judge Ginsberg accepted the TSA’s counter argument that if they couldn’t find a Muslim to complain, that therefore none existed.

The Judge found adequate protection of privacy in that the software which displays the nude bodies of passengers obscures their faces, is not capable of storing the images, and that the agents themselves are forbidden (but who checks?) to take pictures of the images.

What the Judge failed to see was that after a person has been irradiated, he still might be forced into a pat down or strip search. Given that no diagnostic instrument (such as X-ray machines) can ever be perfect, these instruments will give false indications of concealed weaponry, thus triggering more invasive searches.

The argument EPIC should have used was that these more invasive searches are not warranted by the evidence of these “false positives”, thus sufficient suspicion for invasive searches does not exist. Precedent for this argument exists in “lie detector” screenings for spies. We have hard, empirical evidence on the frequency of false positives, which could have been demanded from the TSA, and on the number of true positives—i.e., the number on bona fide bomb- or biological-weapon carrying terrorists the TSA has actually identified. Which is 0 or close to it. And let’s not forget those actual baddies the TSA missed.

The Judge also found it convincing that TSA searches were not unreasonable because he was impressed that passengers had a choice to which invasive search passenger’s preferred: x-raying or pat down. This is a distinction only a lawyer could love. It is like arguing that a man was not murdered because his assailant offered the victim a choice between a gun and a rope.

The TSA did come in for a spanking, but of the “Oh, you naughty boy” type. EPIC argued that TSA did not give the public any chance to chime in on the nature of the searches and that the TSA, in a willy-nilly manner, invented whatever rules they liked. The TSA concurred and effectively said, “Why, of course we did not announce. We’re the TSA.”

This was, finally, inadequate according to the Judge who said, “the TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening.” But he still let the TSA have their way because, and I quote, not to would cause a “disruption” in airport screening. We musn’t have one of those!

Meanwhile, we still ask: where is the left? Nothing but crickets heard. It is enough to drive one to distraction.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. — Benjamin Franklin

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Update Although funny, I removed the analysis of this parody from the original article. Do read this (real) analysis by a lawyer.