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Whole Body Imaging Technology Leading to "TSA Porn"? Your Privacy Rights at the Airport

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By Javier Lavagnino, Esq. on May 19, 2009 12:51 PM

So you're at the airport, you've gone through the inevitable check-in and security line, when you walk through a machine you think is a metal detector, just like you probably have a number of times before. However, if you're at one of nineteen airports across the country testing new "whole body imaging" scanners, you might be interested in knowing just what the security official on the other side of the screen is seeing if you go through one of the machines, according to CNN.

Indeed, if you believe privacy advocates, what they are seeing on their screen might be something just shy of a peep show. Right now just six airports (San Francisco, Miami, Albuquerque, New Mexico Tulsa, Salt Lake City, and Las Vegas) are using the new whole body imaging scanners as a primary security check option, while the remainder use them as a secondary check after people fail a metal detector. In the past, the secondary option would have been a pat down.

So what are the laws, if any, on privacy at the airport and just how far can the TSA go in its security checks? Well, pretty far would be the answer, as far as past court rulings go. Airport privacy concerns are nothing new. Previously, pat downs alone generated significant cause for concern, with plenty of complaints about how offensive and invasive it is to get groped, fondled, and/or prodded as part of taking a trip. The TSA has developed policies and regulations regarding its pat-down measures, but privacy advocates point out no such policies exist yet for the whole body imaging technology.

From a constitutional standpoint, a pat down is less intrusive than a full-on strip search, obviously, but the question is really whether these machines' images would fall neatly into one category. Of course, there's no agreement amongst advocates either, with some calling the resulting images "fuzzy negatives", while others are going so far as to call them "TSA porn".

Although the Fourth Amendment protects individuals from unreasonable searches and seizures, searches at airports have been held to a lower standard due to security concerns, particularly after 9/11. The Supreme Court hasn't specifically dealt with airport security measures, but previously noted that where "the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable'--for example, searches now routine at airports and at entrances to courts and other official buildings."

That ruling, more than a decade ago, certainly didn't deal with whole-body imaging, but courts take into account that changes in technology may affect whether searches are reasonable. Also potentially putting a crimp in the TSA's plans is legislation introduced last month that would flat-out ban the machines at airports. At any rate, if legislation doesn't resolve the issue, and the TSA does not come up with policies and regulations that nip the issue in the bud, courts may end weighing just how intrusive these images are versus their necessity for security purposes.

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