The New York Police Department has X-ray vans and has been driving them around the city for at least three years. Unfortunately, that's about all we know about the NYPD's use of the vans, since it has been battling in court to keep as many details of the program secret as it can.
ProPublica has sued the city, requesting the release of documents relating to the policies, procedures, and training associated with uses of X-ray vans along with information on prior use and the possible health effects of irradiating residents. In January, a judge ordered the NYPD to release the documents, but they are appealing the decision on the grounds that the release would hamper investigations.
X-Rays and Reasonableness
The Fourth Amendment limits the government's ability to search based on what is reasonable, and requires the government to obtain warrants for more intrusive searches. Whether the NYPD's use of X-ray vans is Constitutional is currently up for debate.
In the past, X-ray searches have been found to be compatible with the limits on search and seizure, primarily because of where the X-ray searches were taking place. Using X-ray machines and body scanning technology at border crossings and airports has been upheld based on the increased security interest in national borders and airlines as well as the implied consent of travelers.
Without knowing who the NYPD is scanning with their vans and why, the competing interests in privacy and security can't be balanced in the same way. We also don't know if the NYPD is obtaining warrants or some other judicial authorization prior to using the technology.
As The Atlantic pointed out, there also serious health concerns with the X-ray technology used by the vans. The vehicles are Z Backscatter Vans, and as Judge Doris Ling-Cohan highlighted in her ruling on behalf of ProPublica, "petitioner maintains, and it is not disputed by the NYPD, that 'there may be significant health risks associated with the use of backscatter x-ray devices as these machines use ionizing radiation, a type of radiation long known to mutate DNA and cause cancer."
And without knowing where, how often, and on whom the vans' technology is being deployed, it remains impossible to assess the health risks posed by the X-rays. The NYPD is battling tooth and nail to keeps details secret -- Police Commissioner Bill Bratton first said he would not talk about the program at all, then contended, "The devices we have, the vehicles if you will, are all used lawfully and if the ACLU and others don't think that's the case, we'll see them in court -- where they'll lose."
- NYPD Doesn't Want to Talk About Its X-ray Vans (New York Magazine)
- Anal Cavity Search Doesn't Violate 4th Amendment, 1st Cir. Rules (FindLaw's Decided)
- When Are Warrantless Searches OK? (FindLaw Blotter)
- When Are Police Dog Sniffs Legal? (FindLaw Blotter)