The body scanners must go

While I fully agree with the other fine points made by Martin Lijtmaer in his recent post on this blog, I have to disagree in the strongest terms with his claim that widespread concerns about airport body scanners are overwrought.

In terms of both law and facts, the body scanners must go. I can understand how one might think that they are “no big deal” given the extent to which Fourth Amendment protections have been eroded in recent years—especially at the border and ports (including airports). But that would allow the autocrats to win by their own bootstraps. The inefficacy of the body scanners, taken in conjunction with their unprecedented intrusiveness, makes them clearly unconstitutional. This is why I decided to become a plaintiff in the lawsuit suing the Transportation Security Administration (TSA) and Department of Homeland Security (DHS) to stop deployment of the body scanners. For more on the legal points, see our brief and the writings of other legal experts and distinguished constitutional scholars (such as Professor Jeffrey Rosen).

As the Electronic Privacy Information Center’s Freedom of Information Act requests have proven, these body scanners were not intended or designed to detect the plastic explosives that are their supposed raison d’etre. And so it should be no surprise that the body scanners do not work to detect such explosives, as admitted by a British Member of Parliament who used to work for one of the manufacturers of these machines. Security expert (and co-plaintiff in my lawsuit against DHS and the TSA) Bruce Schneier elaborates, as have I and many others, including CNN’s Dr. Sanjay Gupta and the non-partisan Government Accountability Office.

Concerns about the body scanners aren’t a mere “distraction,” but the most recent visible example of absurd, expensive, and counterproductive “security” measures that are easily evaded by terrorists yet end up terrorizing everyday Americans as our government capitulates to fear and irrational responses. The body scanners epitomize this irrationality and are a logical extension of the other overbroad, harsh, counterproductive, and unconstitutional measures—one that we cannot afford to ignore.

Yet the US government continues to spend billions on these machines in order to promote this illusory, “feel good” form of “security theatre.” The body scanners join countless other overbroad, intrusive measures that are worse than useless because they make us less safe by creating a false sense of security while diverting resources and attention from methods that actually work.

Why would our leaders do this? Well, some of them—like Michael Chertoff—are simply corrupt, making millions of dollars from lobbying and promoting machines which they ordered as government officials and lobbied for and promoted without disclosing the massive and direct financial conflict of interest. Others, like President Obama, Janet Napolitano, and the congressional leaders on both sides of the aisle, are so terrified of being called “soft on terrorism,” that they are quick to do anything that makes them appear to be taking action in response to threats—even if it’s ineffective and merely “fighting the last war.”

All this amounts to an appalling lack of true leadership, especially when you consider the serious tangible and intangible harms—to rights and to the health of the populace (especially vulnerable groups such as children, the elderly, the immune-compromised, and racial and religious minorities) from the body scanners and similar illegal, intrusive, and ineffective methods.

It’s beyond time for all of us to rise up and stop this nonsense. Like the USA PATRIOT Act, the body scanners have transcended their original context to symbolize unwarranted, ineffective, and wasteful action in the name of security that actually damages true security and our human rights. As a result, they have galvanized activists on the left and right, from progressive bloggers to Tea Party members. It is crucial to look at all the facts and law here—and more importantly, to take action, and encourage others to take action, on this issue.

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Hi, Henry --

Thanks for your comment; I don't know whether you're a lawyer or not, but before venturing that the Fourth Amendment doesn't apply simply because airplanes are involved, you may want to take a look at some of the contrary case law, or e.g. our opening or reply briefs in the litigation against the DHS and TSA on this issue, which cite extensive case and statutory law clearly viiolatied in addition to the serious violation of basic Fourth Amendment rights:

I might add that similar serious legal issues with these scanners have een raised by distinguished legal experts in a large number of countries around the world, including the UN Special Rapporteur on Counterterrorism and Human Rights:

EU Justice Commissioner Viviane Reding, The European Union's Fundamental Rights Agency and the Art. 29 Working Group (of EU Data Protection Authorities from the various member states of the EU):

Not to mention other constitutional law experts here in the US, such as Professor Jeffrey Rosen of GW Law:

and Marc Rotenberg of the Electronic Privacy Information Center and the BORDC's Advisory Board:

So, with respect, and not knowing where you're getting the inaccurate information to the contrary, I hope that you'll realize that the legal situation isn't as you've stated, and that you will decide to work with us to aggressively oppose these unconstitutional, illegal, invasive, ineffectual, counterproductive TSA security procedures!

Chip Pitts, Lecturer in Law
Stanford Law School
and Oxford University
Bill of Rights Defense Committee

actually, there is no right not to be searched before boarding an aircraft. commercial air liners are private aircraft, no different than the cessna 150 at the dirt strip down the road. the constitution has been judged to say travel cannot be restricted (lemuel penn case) but does not specify how one should travel, that is a personal choice.
noright+no violation.