Naked body scanners court case underway, throws up disturbing precedents
A government attorney has told federal appeals court judges that the Department of Homeland Security has the authority to literally strip search Americans inside airports if it determines that is the correct course of action to deal with “ever-evolving threats”.
The Transportation Security Agency (TSA) “should not have to stop every five minutes for comment and rulemaking” said Justice Department lawyer Beth Brinkmann in oral testimony before the US Court of Appeals for the District of Columbia Circuit.
In a hypothetical scenario, a three-judge panel, hearing testimony both for and against the use of body scanning technology within airports, questioned whether the TSA would be required to seek public input before initiating mandatory strip search procedures.
Judge David Tatel directly asked if the TSA would need to take public “notice and comment” before implementing such rules if “a terrorist gets through and blows up the airport.”
“No,” Brinkmann answered.
The government attorney added that Congress requires the TSA to use the scanners or any other “effective technology” to protect the airlines, so no public input is necessary.
“You may well be right,” Tatel responded.
Though she conceded that there would be “an overwhelming Fourth Amendment claim” against such an eventuality, Brinkmann added “You can’t hamstring the agency.”
The scenario was discussed in order to determine whether the TSA violated federal rules by not allowing a public comment period before Homeland Security instituted a full scale roll out of radiation firing body scanners in 2009.
The court heard that under The Administrative Procedures Act, government agencies are generally required to seek public input before implementing new procedures, should those rules significantly affect public rights and liberties.
The case was brought against the DHS by The Electronic Privacy Information Center (EPIC), which is also arguing that the TSA is in violation of the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment.
EPIC’s opening brief in the case states that the Department of Homeland Security “has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history,”
The DHS has argued that the body scanners do not store images and therefore do not violate the Video Voyeurism Prevention Act, however, evidence obtained under the Freedom of Information Act has shown this to be untrue.
In addition, the DHS argues that it’s newer scanner software protects privacy by only showing a generic outline of travelers passing through it. However, EPIC has documents that prove the software merely places a filter over the naked image and, thatthe machine still store unfiltered naked images.
During oral testimony yesterday, the government attorney Brinkmann also argued that because passengers are not forced to go through naked scanners, and can opt out, they do not violate the Fourth Amendment.
Judge Douglas Ginsburg, seemed to agree, noting “No one is coerced into doing the full-body scanner.”
Rotenberg countered by stating that the signage informing the public that they had the option to opt out was far from adequate and that the enhanced pat-down “is not a meaningful option,” because it also violates privacy.
One might add that passengers are indeed coerced to go through body scanners by TSA agents. As we have extensively documented, anyone who refuses is pulled out of line to cries of “WE HAVE AN OPT-OUT” and is groped in full public view. This serves as clear intimidation, and coercion to not resist the scanners.
EPIC attorney Marc Rotenberg also argued yesterday that the body scanners are a potential health threat owing to the x-ray radiation they emit. The government countered by suggesting that studies have shown this not to be the case. However, as we have one againextensively documented, the only studies that do so are the government’s own tests.
Indeed, in a letter to the White House, John Sedat, a University of California at San Francisco professor of biochemistry and biophysics and member of the National Academy of Sciences, stated:
“it appears that real independent safety data do not exist… There has not been sufficient review of the intermediate and long-term effects of radiation exposure associated with airport scanners. There is good reason to believe that these scanners will increase the risk of cancer to children and other vulnerable populations.”
The case is ongoing. EPIC will also testify in a Congressional Hearing on the TSA body scanner program, which is scheduled for next Wednesday.