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Airport Body Scanner Lawsuit Moot After Software Upgrade: 1st Cir.

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By Aditi Mukherji, JD on July 22, 2013 3:53 PM

In the realm of airport body scanner lawsuits, pro se plaintiff-appellants Jeffrey H. Redfern and Anant N. Pradhan filed a constitutional claim against the TSA’s use of Advanced Imaging Technology (AIT) body scanners and enhanced pat-downs.

But the case has been tossed as moot by the First Circuit Court of Appeals because of a software upgrade.

Due to the upgrade, the AIT scanners used at passenger screening checkpoints no longer generate the TMI images of passengers’ bodies that spawned this lawsuit; instead, they have been displaying a generic outline of a person for all passengers.

The New ATR Software

The TSA relatively recently developed privacy software that indicates potential threats on a generic human figure. This software is called "Automatic Target Recognition" (ATR), and it's been installed on "all" millimeter-wave scanners (which use radio waves) currently being used for passenger screening.

Because the ATR software couldn't be programmed into backscatter scanners (which use x-rays), those scanners aren't used anymore.

Get the Boot When It's Moot

Now that the backscatter scanners have been removed from security screening checkpoints, and that appellants will no longer be subjected to body scanners that depict revealing images of their bodies, the remainder of appellants' claims have become moot, the court concluded.

The fact that a live controversy existed when the plaintiffs brought suit isn't enough to keep it alive, the court explained, citing previous decisions. Think of a case like a bus transfer. It needs to be valid both when you get on and off the bus.

Capable of Repetition

Speaking of buses, the appellants tried to frame mass transit into an argument under the "capable of repetition, yet evading review" exception to the mootness doctrine.

Although the government promised to remove all backscatter scanners from passenger screening checkpoints, it plans to redeploy such scanners to "other mission priorities within the government."

For that reason, the appellants argued, it was "reasonable to expect that [they] could at some point in the future be scanned again," because they live in San Francisco and Washington, D.C., and "are no strangers to mass transit and government buildings."

But the court said that just because they live in big cities and frequent mass transit and government buildings, and may confront backscatter scanners again, doesn't mean they will. It's too speculative to overcome mootness.

At the end of the day, the government hasn't said where it plans to re-deploy the decommissioned backscatter machines, or whether it intends to reuse them on the traveling public at all. There are a myriad of possibilities.

If the appellants do come across those pesky, pervy backscatter scanners again, it seems the court will just cross that invasive bridge when it comes to it.

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