WASHINGTON – A U.S. appeals court rejected a constitutional challenge to the government’s use of body imaging scanners at the nation’s airports, ruling that the need to detect hidden explosives outweighs the privacy rights of travelers.
The 3-0 decision announced Friday noted that passengers may avoid the so-called “naked scans” by opting to undergo a pat-down by a screening agent.
But since the body scanners became standard last year, more than 98 percent of air travelers have chosen to step into a machine, raise their arms and pose for an “advanced imaging,” the Transportation Security Administration said.
Before last year, the standard screening devices at airports detected guns, knives, bombs or other metallic items. But the case of the so-called “underwear bomber” in December 2009 prompted the agency to adopt the body scanners as an additional primary screening device. Umar Farouk Abdulmutallab, a 23-year old Nigerian, boarded a Northwest Airlines flight in Amsterdam with plastic explosives hidden in his underwear. He planned to detonate them before the plane landed in Detroit, but he was thwarted by other passengers and the crew.
The “advanced imaging technology” permits a screener to see nonmetallic images, including powders or liquids. But the electronic image of naked bodies set off alarms over privacy. Critics called it a “virtual strip-search.”
Last year, TSA installed 486 scanners at 78 airports, and it plans to add 500 machines this year.
The Electronic Privacy Information Center in Washington sued the TSA last year and called the full-body scans “the most sweeping, most invasive and the most unaccountable suspicion-less search of American travelers in history.”
Its suit said the scans violate privacy rights, including the Constitution’s protection against “unreasonable searches.”
The U.S. Court of Appeals for the District of Columbia reviews challenges to federal regulations. Its judges upheld the use of the scanners Friday, but not before agreeing that travelers are giving up some privacy.
“Despite the precautions taken by the TSA, it is clear that producing an image of the unclothed passenger … intrudes on his or her personal privacy in a way that a magnetometer does not,” said Chief Judge Douglas Ginsburg.
But Ginsburg concluded the close-up searches are reasonable and justified because lives are at stake and because the scanners – or the optional pat-down – offer the best way to prevent nonmetallic explosives from being carried onto an airplane.
“That balance (between privacy and security) clearly favors the government here,” he said.
The ruling was not a total win for the government. The judges said the TSA had not given the public the required opportunity to comment on the new screening program before it was put into effect. The court ruled that the agency must do so now, but the use of body scanners may continue “without interruption,” Ginsburg wrote.
TSA officials said they were reviewing the ruling. They also said they are testing new software that would produce a “generic outline” of a human figure, but not the more revealing “passenger-specific image.”