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Body scanners, pat-downs violate law and privacy

By Marc Rotenberg, Special to CNN
  • Marc Rotenberg: If air travelers object to body scanner, they get an "enhanced" pat-down
  • The methods are unconstitutional and have never been reviewed by a court, Rotenberg writes
  • Travelers call body scanners humiliating and pat-downs assaults, he says
  • He says TSA did not invite public comment and that methods violate values, religious tenets

Editor's note: Marc Rotenberg is president of Electronic Privacy Information Center and teaches privacy law at Georgetown University Law Center. He frequently testifies before Congress on emerging privacy and civil liberties issues. He is lead counsel in EPIC v. DHS before the U.S. Court of Appeals for the D.C. Circuit.

(CNN) -- Body scanners that peer through clothes are deployed in airports across the country. Travelers who object are subject to "enhanced" pat-downs. Parents watch as their children are groped before boarding a plane.

The elderly are asked to raise their arms high above their heads so that the body scanners can capture a naked image of a 78-year-old man or an 81-year-old woman.

No other country in the world subjects its air travelers to the combination of screening procedures that Americans are being asked to endure.

"Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless," wrote a federal court not long ago.

That is the starting point for a case presented by my organization, the Electronic Privacy Information Center, or EPIC, that the Transportation Security Administration has crossed a line and the airport body scanner program should be halted.

The government contends that travelers are happy with the new procedures and there are hardly any complaints.

But those claims ring hollow in the face of Americans' real experiences at the airport. In documents obtained by EPIC through the Freedom of Information Act, travelers routinely described the body scanner experience as embarrassing and humiliating. Pregnant women worry about the effects of radiation. Men and women liken the pat-downs to "sexual assault."

This debate about the future of domestic security is also a debate about our nation's values.
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The courts give the government a great deal of latitude in airports, but it is not unbounded, and the current screening procedures -- the digital X-ray cameras called "body scanners" and the genital-groping searches called "pat-downs" -- have never been reviewed by a court. Is a court really prepared to say that in the absence of suspicion, these search procedures -- which the law would otherwise treat as sexual battery -- are "reasonable"?

The EPIC case is about more than the Fourth Amendment. As a federal agency, the TSA is also required to follow several laws that reflect American values and help ensure accountability and effectiveness.

To begin, we are a country that believes in transparency and the importance of the government listening to the people. In our country, when a federal agency undertakes a substantial change in its activity such as making body scanners the primary screening technique in airports, it is required to give the public a formal opportunity to comment -- and it must take those comments into account. Issuing press releases is no substitute.

EPIC and a wide range of organizations repeatedly urged Homeland Security Secretary Janet Napolitano to create this opportunity for public comment, but the secretary ignored our requests. In her view, her agency, unlike other agencies in the federal government, did not have to follow that law. That is why we turned to the courts.

This debate about the future of domestic security is also a debate about our nation's values.

The Religious Freedom Restoration Act reflects a constitutional principle that is also the basis for our nation's founding -- that the government may not substantially burden the free exercise of religion. Devoutly religious travelers who are asked to submit to pat-downs and pose for naked body scanner pictures are asked to violate central tenets of their religious beliefs. This is an affront to our history of religious freedom.

The Video Voyeurism Prevention Act was passed to stop "upskirting" and "downblousing," the use of hidden video cameras to record people in public places. Technologists understand that it is becoming increasingly easy to peer under clothes and capture images of people in ways that clearly offend privacy.

Now the TSA says not to worry because the person observing is in a remote location and the recording capabilities of the devices are turned off. This is voyeurism on a grand scale, paid for by taxpayer dollars. For any security official with a cell phone camera and an internet connection, assignment at an airport near Hollywood could be a real moneymaking opportunity.

EPIC also charged that the chief privacy officer at the Department of Homeland Security failed to do her job when she allowed the body scanner program to go forward. There was a lot of controversy when the department was established. Many members of Congress did not want to see the new agency become an unaccountable domestic police authority, wielding its powers against citizens.

The proposal for a national identity card was rejected. A strong privacy office was created with clear legal responsibilities to "ensure that new technologies do not erode the privacy rights of Americans."

When the Department of Homeland Security privacy officer signed off on the body scanner program, she didn't just fail to do her job. She violated an act of Congress that was put in place so that the department could not subject Americans to outrageous invasions of personal privacy.

In response to our objections, the government says "terrorism" and "9/11." But neither word grants the government a "blank check," as Justice Sandra Day O'Connor once wrote, to ignore the Constitution or to violate federal law.

Not long ago, the Supreme Court held that Guantanamo Bay, a military base on Cuba, is subject to U.S. law. A high-security facility, built on a distant island and designed to house the most dangerous criminals, is subject to the rule of law. Shouldn't American airports be as well?

The opinions expressed in this commentary are solely those of Marc Rotenberg.

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