Exposed: TSA Sued for Naked Screening

Does it make sense to dedicate scarce airport screening resources as much on elderly grandmothers as on twenty-something old men with passports from nations in the Middle East?  The question may be closer than you may think.

This week brought reports that the Electronic Privacy Information Center ("EPIC"), a privacy rights advocacy group, presented its argument in a federal case against the Transportation Security Administration ("TSA"), intending to stop TSA from using airport scanners that show naked images of a passenger's body as a primary means of screening.  EPIC wants the U.S. Court of Appeals in Washington, D.C. to compel TSA to make a new rule regarding airport screening with input from the public before it goes into effect.

EPIC claims that such screening is an "unreasonable search" in violation of a passengers' civil rights under the Fourth Amendment of the United States Constitution.  The government has countered that the searches are "minimally invasive" and that Congress gave the TSA responsibility to protect the traveling public from evolving threats and "should not have to stop every five minutes for comment and rulemaking."

Whether or not the court has the authority to require TSA to make a new rule is an open question, particularly in light of the fact that passengers can always opt out of the screening and undergo a pat-down (which raises its own set of concerns).

In any event, the law is not definitive on the issue of profiling.  In the case of Alshrafi v. American Airlines, Inc., 321 F. Supp. 2d 150 (D. Mass. 2004), a federal district judge framed the controversy of race-based airline passenger profiling like this:

Since the terrorist attacks of September 11, 2001, this country has struggled to meet the stringent demands of national security and, simultaneously, to protect the civil rights of the American people.  Some have argued that the practice of racial profiling, wherein law enforcement officials or others single out members of a particular race for heightened investigatory scrutiny, based primarily or exclusively on racial characteristics that allegedly correlate with criminality, represents a conflict between those twin goals.  They argue that although members of all races are entitled to be treated equally, racial profiling is a rational and effective security measure.  Others argue, much more persuasively, that racial profiling is not a legitimate security measure, and that at least in the realm of discrimination, liberty and security do not conflict.

To be continued ...