AnalysisU.S. Supreme Court will eventually rule on the legality of whole-body scanning
In the absence, at least for now, of an overarching U.S. Supreme Court decision, how would U.S. courts react to the privacy concerns surrounding whole-body searches, assuming a legal challenge is initiated against taking pictures of one’s private parts while trying to fly to the United States? An answer may be found on the fact that at least two U.S. circuit courts of appeal have beaten back challenges to airport security measures; in the most recent one, in 2006, the 3rd U.S. Circuit Court of Appeals — Justice Samuel Alito’s old stomping grounds — ruled a suspicionless, unwarranted search during airport screening was allowable under the “administrative search doctrine”; the doctrine, elucidated in a 1971 ruling by the 9th U.S. Circuit Court of Appeals, said that “searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of a crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched”
Tens of millions of airline passengers headed to the United States are facing the prospect of full-body scans that might expose their genitalia to airport security personnel. Civil liberties groups are questioning the constitutionality of such warrantless invasions of privacy, but the U.S. Supreme Court has never handed down a nationwide ruling on just what privacy rights an airline passenger has. If and when new measures are challenged, a majority of the justices could decide a passenger gives up the “expectation of privacy” — the key to invoking constitutional privacy rights — simply by trying to board an airliner.
UPI reports that the impetus for the new security measures is the Christmas Day attempt by a Nigerian, Umar Farouk Abdulmutallab, 23, to blow up a flight from Amsterdam, Netherlands, over Detroit using explosives hidden in his underwear, out of sight of security screeners. If the attempt had succeeded it would have killed some 300 on the aircraft and an unknown number on the ground.
The attempt planned by al-Qaeda elements in Yemen, and intelligence reports said there could be more on the way.
Under intense public pressure, the Obama administration conducted a review of intelligence failures and the Transportation Security Administration (TSA) prepared to set up electronic full-body scanners for many passengers attempting to enter the United States. The scanning would even apply to U.S. citizens returning home from designated, usually Muslim, countries.
“Because effective aviation security must begin beyond our borders, and as a result of extraordinary cooperation from our global aviation partners, TSA is mandating that every individual flying into the U.S. from anywhere in the world who holds a passport issued by or is traveling from or through nations that are state sponsors of terrorism or other countries of interest” — a total of fourteen countries — “will be required to go through enhanced screening,” the TSA said in a statement 3 January. “The directive also increases the use of enhanced screening technologies and mandates threat-based and random screening for passengers on U.S. bound international flights.”
In addition, the agency is implementing unspecified measures at U.S. airports. The TSA said: “At this time, security checkpoint requirements for passengers departing U.S. airports remain the same. Passengers do not need to do anything differently, but they may notice additional security measures at the airport.”
Other parts of the statement seemed to point to Muslims and others wearing ethnic clothing. “TSA’s current procedures for the screening
