January 3, 2012
By federal statute, anyone seeking to board a commercial airline flight must be screened by the Transportation Security Administration ("TSA") in order to ensure that he or she is not "carrying unlawfully a dangerous weapon, explosive, or other destructive substance." 49 U.S.C. §§ 44901(a), 44902(a)(1). The details of the screening process have largely been left to the discretion of the agency.
In response to a 2004 congressional directive, but also to address the inadequacies of the older magnetometers through which passengers were required to pass, the TSA began contracting with private vendors to develop advanced imaging technology ("AIT") for use at airports. One of the AIT scanners subsequently procured by the TSA uses millimeter wave technology, which relies upon radio frequency energy, and the other uses backscatter technology, which employs low‑intensity X‑ray beams. Each technology produces a crude image of an unclothed person, who must stand in the scanner for several seconds while it generates the image. That image enables the operator of the machine to detect a nonmetallic object, such as a liquid or powder—which a magnetometer cannot detect—without touching the passengers coming through the checkpoint.
The TSA began to deploy AIT scanners in 2007 as "secondary" screening of selected passengers who had already passed through a magnetometer. Based upon the apparent success of testing, the TSA decided early in 2010 to use the AIT scanners everywhere for primary screening. No passenger is ever required to submit to an AIT scan. Although they often go unnoticed, signs at security checkpoints notify passengers they may opt instead for a pat-down, which the TSA claims is the only effective alternative method of screening passengers.
The TSA has tried to mitigate the effect that a scan using AIT might have upon passenger privacy. Each image produced by a scanner passes through a filter to obscure facial features and is viewable on a computer screen only by an officer sitting in a remote and secure room. As soon as the passenger has been cleared, the image is deleted, and it cannot be retained on the computer or in any other way. In addition to these measures to protect privacy, two studies of the safety of the scanners that use backscatter technology have both found that the scanners emit levels of radiation well within acceptable limits.
Unsatisfied by the mitigation measures taken by the TSA, a privacy rights organization and two individuals sued the federal Government over the use of AIT, claiming violations of statutory and constitutional rights. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011), reh'g en banc denied (Sept. 12, 2011). The litigation failed on these substantive claims, but there was a procedural victory of sorts for the plaintiffs, concerning rulemaking requirements. The TSA rule allowing AIT technology instead of magnetometers constituted a substantive legislative rule subject to notice‑and‑comment rulemaking requirements that the TSA should have followed. The rule could not be characterized as a procedural rule, an interpretative rule, or a general statement of policy not subject to rulemaking requirements, since the change substantively affected the public and substantially changed the experience of airline passengers. The rule was not merely "interpretative" either of the statute directing the TSA to detect weapons likely to be used by terrorists or of the general regulation requiring that passengers comply with all TSA screening procedures. Therefore, the court remanded the matter to the TSA with instructions to "cure the defect in [the rule's] promulgation." Id. at 8.
Except for this success on the rulemaking issue, the plaintiffs' arguments failed. An imaginative claim that use of AIT violated the federal Video Voyeurism Prevention Act ("VVPA") was unavailing. That statute did not apply because the TSA's screening fell within the VVPA's exemption for "lawful law enforcement, correctional, or intelligence activity." 18 U.S.C. § 1801(c). The court added that the plaintiffs' argument that the TSA does not engage in "law enforcement, correctional, or intelligence activity" bordered upon the silly. Elec. Privacy, 653 F.3d at 8.
Nor did the TSA's use of AIT violate the Privacy Act, 5 U.S.C. § 552a, a statute that applies only insofar as the Government maintains a "system of records" from which it can retrieve a record by using an individual's name or other identifying information. The TSA does not maintain data from AIT scanners in a "system of records" linked to names or any other identifier. Even if the TSA had the ability to combine various sources of information and then to link names to the images produced using AIT, the Privacy Act claim still failed because the plaintiffs offered no reason to believe that the TSA has, in fact, done so.
The plaintiffs' unsuccessful constitutional theory was that the use of AIT by the TSA constitutes unreasonable searches prohibited by the Fourth Amendment. First, as an administrative search, use of AIT does not require individualized suspicion. Moreover, the need to search airline passengers to ensure public safety has been particularly acute, and an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. It was also significant that any passenger can avoid AIT screening in favor of a pat-down; this option reasonably allows each passenger to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is less invasive.
Whether an administrative search is "unreasonable" under the Fourth Amendment is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. In the court's view, "[t]hat balance clearly favors the Government here." 653 F.3d at 10.Finally, the court rejected what might be called a "slippery slope" argument advanced by the plaintiffs. It was not a sufficient basis for striking down the use of AIT at airports that, given the times in which we live, the public may not yet have seen the most intrusive security measures that could be taken by the TSA. As stated by the court, "it is not determinative that AIT is not the last step in a potentially escalating series of search techniques." Id. AIT scanners do not necessarily have to be "minimally intrusive" to be consistent with the Fourth Amendment.