Invasive, Useless, and Unconstitutional: The Case Against the TSA
Recently, the United States Transportation Security Administration (TSA) instituted a new screening measure to our nation’s airports. The tool used by this measure is called a backscatter radiation machine. Andrea Canning, of ABC, reported that backscatter machines create realistic contour outlines of the human body, so that agents can determine if a flyer is carrying concealed contraband material, i.e., weapons or explosives. The TSA claims that the screenings help them in their efforts to keep American flights safe. The greatest outcry over the new policy, however, has come from the alternative offered to the backscatter scans. This alternative is a full-body pat-down, a highly invasive measure. Even though the public outcry focuses on the pat-downs, the backscatter machines themselves should not be used. They are highly invasive, ineffective, and, therefore, unconstitutional.
The invasiveness of backscatter machines is clear, as they create a realistic naked image of the person being scanned. Not only are the images viewed by a TSA officer, the machines are capable of storing the images. Jeffery Rosen, in the Washington Post, reported that the machines, while in test mode, are capable of storing and transmitting the images they create. This is obviously invasive. Rosen went on to paraphrase former Supreme Court Justice Sandra Day O’Connor, saying, “… a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.” The aspect of the Constitution referred to there is the Fourth Amendment, which prohibits search without probable cause. Wishing to board an airplane is not probable cause. Those examples show that, using both common and constitutional definitions of invasive, the backscatter machines qualify.
The ineffectiveness of backscatter machines is another topic that must be addressed. If the machines are capable of detecting previously concealable items, then they might be permissible. However, they would not have detected the ‘underwear bomber’, Umar Farouk Abdulmutallab, as Rosen reported. He paraphrased a British Member of Parliament who, after evaluating the machines agreed with that statement. When a security measure put into place to prevent an occurrence does not actually work, there is a serious problem. Again referring to O’Connor, a search that is reveals embarrassing information without efficacy in detecting contraband is very likely not permissible. As to the alternative, Andrea Canning reported that Charles Slepian, of the Foreseeable Risk Analysis Center, when asked whether the pat-down would have detected Abdulmutallab, said that, “Not likely. The underwear bomber had powder in his underpants. You really don't know if there is an explosive there.” From that, we know that the underwear bomber would have slipped through the new screening procedures no matter which method he chose. The entirety of the new security procedures are ineffective.
The invasiveness of backscatter machines, if it was ever in doubt, is firmly established, as is their uselessness. When a search is embarrassing, invasive, and ineffective, it is almost certainly unconstitutional. In addition to O’Connor, the current Supreme Court Justice Samuel Alito, while he was a judge on the 3rd Circuit Court of Appeals, wrote that invasive searches are reasonable, “only after a lower level of screening disclose[s] a reason to conduct a more probing search.” This previous opinion from a Supreme Court Justice is very revealing, and firmly establishes the questionable status of the TSA’s current screening procedures.
When the invasiveness of a method is established, and its efficacy brought into question, its constitutionality is very suspect. As the TSA’s screening methods are highly invasive, that aspect of the argument cannot be seriously questioned. The efficacy of the method is somewhat murkier, though. However, there are enough doubts about the efficacy of the screening process to proceed with a discussion of constitutionality. The constitutionality of a method is defined by its efficacy, invasiveness, and suspicion. As there is no reasonable suspicion that every flyer is going to attempt terrorism, that aspect is already shaky. The lack of suspicion would be forgivable if the method were highly effective. Sadly, this is not the case. As enhanced screenings are invasive, there is no serious argument that the screenings are constitutional. Therefore, the Transportation Security Administration’s new screening policies should be abolished or modified in order to conform to the current case law and constitutional interpretation. As always, though, Benjamin Franklin said it first and best, “Those who would give up a little liberty for a little safety deserve neither.”
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