Naked body scanners are just fine, no "constitutional arguments," court rules

David Kravetz in Wired News: "A federal appeals court on Friday unanimously declined to block the government from using airport body scanners across airports nationwide, saying it is 'not persuaded by any of the statutory or constitutional arguments' against them."

Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

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angusm

Oh, for heavens’ sake, people. Just chill. As soon as it becomes obvious that all this TSA nonsense is a costly, ineffective waste of time that enrages everyone and has serious implications for civil liberties, our representatives will step in and wind the whole thing up.

Just like they did with the War on Drugs.
juepucta

Wait until the TSA people start getting cancer.

I’m not counting on their union to do much, but i bet eventually it’ll get people’s attention.

-G.
- Anonymous
  
  Juepucta, there already ARE TSOs who are getting cancer from the body scanners. The TSA is trying to cover it up. http://www.infowars.com/cancer-surges-in-body-scanner-operators-tsa-launches-cover-up/
delt664

Lets just put up “This is a Constitution-Free Zone” signs at airports and be done with it.
- Ceronomus
  
  Why not? Technically Florida already *IS* a Constitution Free Zone.
songofsixpence

All this has done is make me look at commercial air travel as something which is simply not an option.

I’m a completely law abiding citizen and recently passed a very thorough federal background check with flying colors. But I just don’t like this.

I have a difficult time respecting authority and I also get incredibly uncomfortable (as in panic-attack uncomfortable) around any kind of authority figure. I’m also very averse to being touched.

Fortunately I’m at the point in my life where I’m content to explore my private ranch and don’t really have much of a desire to travel around to distant lands. If I want to travel, I simply drive and prefer it anyhow since I’m on no schedule of any kind and I can just leisurely amble through this wonderful country.

It still saddens me and, I’m ashamed to admit, fills me with rage that somehow everyone let this happen. It seems like people realize that this is wrong but somehow that sentiment is not connecting with action.

The question is whether this will become fixed or if it will just be another thing that crumbles along with the US, whenever that happens.

Look at the crappy gun legislation we had throughout the 70s and 80s, and then in the 90s the whole concealed carry movement came along and with it a relaxation of gun laws. So, it’s certainly possible to reverse anti-freedom measures. I guess we’ll find out with time.
Tom

Amen, I gave up flying after my last trip to Europe last year. Nothing like this in Denmark, Netherlands, Norway, Sweden, or Ireland. No problems, no pat downs and all the nonsense about water bottles on planes — empty one goes thru TSA and then gets filled from fountain or deli and goes right on thru boarding and onto planes. Stews saw and smiled… one even thanked me for bringing my own and then taking the bottle with me.
Ugly Canuck

Gee, a little looking around and the internet helps clear things up, even though IANAL.

TSA = Transportation Security Administration

Thus, there ought to be but little wonder that ‘constitutional law’ does not have a bearing on TSA rules – this is a first and foremost a question of administrative law:

http://en.wikipedia.org/wiki/Administrative_Law

- and not of constitutional law, which deals with the powers of Congress to set up this sort of thing to begin with.

It is not the TSA’s job which is in question, it is how they are doing that job, the procedures which they have adopted in carrying out their appointed tasks, which form the crux and nub of this matter.

And the Court here says that the TSA did not do it right. That may be because the TSA knows, or suspects, that there is NO WAY to do this right, that the rule would not pass muster, and thus did not even try to use the proper route – that the TSA thought their “rule” would not survive the proper rule-making process. Or maybe they did not think or know that public comment was necessary – a simple procedural mistake in making their scanner rule.

We shall see, eh?
- Kevin Kenny
  
  We shall indeed see — and I was perhaps stronger than I should have been — but in any case the scans remain in force for the moment, with judicial blessing at least in that circuit.
  
  Note that the court could have ruled that the rules governing the scanners were promulgated in violation of the statutes requiring a notice and comment period. (In that respect, I expect that the TSA’s next countermove will be to petition for reconsideration, and failing that for rehearing en banc, with its chief argument being that the rule must be secret to be effective.) The court could have stopped there and not reached the constitutional question in its ruling. It did not do so. It went on, at least in dicta if not in holding, to state that the constitutional question will fail in light of a compelling government interest. It also allowed TSA to conduct its comment period _nunc pro tunc_ while leaving the offensive regulation in place.
  
  There is nothing in statute to keep the TSA from saying to all the commenters, “The concern of … is acknowledged, but a compelling public interest in aviation safety demands that the measures be invoked in spite of it.”
  
  So once the meaningless ritual of a notice and comment period is completed, the regulation goes into conventional force, and it’s all over in the District of Columbia Circuit. That is particularly true if the constitutional argument is presented as holding; in that case, any attempt to re-raise the question will be dismissed as frivolous. And, since the DC Circuit is the only appellate court for Federal regulations, the only appeal left is to the Supreme Court, and to the court of public opinion. I expect no surprises from the Supreme Court, which already allows warrantless and suspicionless search for border inspection anywhere within 100 miles of an international border, a coastline, or an international airport.
  
  Unfortunately for those who oppose them, overwhelming public opinion favors the scanners.
  
  So I still contend that the question returns to the political arena. There is consensus on the constitutional question – for weal or woe – from all three branches of government.
  - bhtooefr
    
    Then, potentially, the answer may be to get a bunch of like-minded people together in one geographic area, and secede from the union?
    
    If the union no longer represents a certain minority of people, then secession or leaving (seasteading, maybe?) are the only ethical options left, really… (Armed revolution works, too, but isn’t ethical, because it’s a minority imposing their will upon the majority.)
    - davidasposted
      
      Libertarians attempted this method ten years ago (although technically it is ongoing): the Free State Project. Their idea was to convince 200,000 like-minded people to move to New Hampshire, a state chosen by FSP members in 2003. Originally, the FSP advocated for the eventual secession of NH from the U.S. once a critical mass of members in the state was reached, but later they settled for creating a more libertarian-friendly environment. 11,000 people signed their ‘intent to move’ pledge; to date, less than a thousand have actually done so.
      
      Secession is messy and unlikely. If you want to live in a more free society, you should probably focus your energies on moving to another country that respects the rights your value.
Anonymous

I just don’t want a dirty old man sitting behind a screen looking at what’s under my clothing and everyone else’s. That’s it. I don’t believe these machines should have been built in the first place. Yet again, in my perfect world the only reason anyone would ever need explosives is to set off fireworks or blow up cars, spectacularly yet harmlessly.

If someone threatens to blow a plane up while it is in the air, or perhaps fly it into a building of some sort, stand up, and strangle him. My reason being: would you rather put your own life at risk, or thousands of others and yourself? I know the situation was rather more complicated than that, but we need citizens to be more like heroes these days, not governments like all-knowing beings.
Anonymous

Once upon a time the way to not get blown up was to not be a tremendously huge dickwad. And the way to live without fear was to refuse to be terrorized. I miss those days.
Anonymous

When TSA does put it up for comment, please FLOOD them with comments. Federal agencies can do what Kenny said and plow ahead anyway, but they notice the numbers in opposition and are more likely to get gunshy with an flood of irate public comments. The numbers get tallied up and put into every briefing document and at ever step along the way there is a chance for someone to argue against it.

I strongly object to the unknown health effects. I strongly object to the government telling me that “just a little” more radiation isn’t harmful. How do we know if the machines are properly calibrated? How do we know if that small little bit more isn’t enough to trigger a cancer gene? I limit the X-rays that my dentist, etc. takes, and flying itself increases radiation exposure (by a tiny amount).

Currently, I opt for the pat-down in lieu of the machine, but if TSA gets its way that won’t be an option.

So please everyone, when we get the chance take the time to comment on the unknown health effects, not just the “ohh, you can see my body” aspects.
Anonymous

Billobreaks: the difference between prisoners and citizens dissolves faster than we think.
Anonymous

http://www.press.uchicago.edu/Misc/Chicago/511928.html

Milton Mayer, They Thought They Were Free, The Germans, 1938-45 (Chicago: University of Chicago Press, 1955)

“What no one seemed to notice. . . was the ever widening gap. . .between the government and the people. . . And it became always wider. . . the whole process of its coming into being, was above all diverting, it provided an excuse not to think for people who did not want to think anyway . . . (it) gave us some dreadful, fundamental things to think about . . .and kept us so busy with continuous changes and ‘crises’ and so fascinated . . . by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. . .”

“Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that unless one understood what the whole thing was in principle, what all these ‘little measures’. . . must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. . . .Each act. . . is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.”

“You don’t want to act, or even talk, alone. . . you don’t want to ‘go out of your way to make trouble.’ . . .But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves, when everyone is transformed, no one is transformed. . . .You have accepted things you would not have accepted five years ago, a year ago, things your father. . . could never have imagined.”
- chgoliz
  
  That was chilling. When you know something is true, down to your bones, it’s a shock to hear it being described in words.
  - Antinous / Moderator
    
    My friend’s mother, who grew up in Germany in the 20s and 30s, says the same thing. They just never really noticed until it was too late.
Michael

Why do the federal appeals courts hate America?
hassenpfeffer

Let’s send these judges through the scanners a few hundred times in a row.
Anonymous

Let’s post the pics on the web too. That is the thing we all fear most.
g0d5m15t4k3

I hope the airlines don’t hate me when I go through security in a thong and nipple tape this fall to fly from Ohio to Vancouver. Do they have these naked scanners in Canada too?
- semiotix
  
  Oh well. Time for the $11/hour TSA workers to quit in protest again, amirite folks?
  
  Do they have these naked scanners in Canada too?
  
  Canada was the first and so far only place I’ve ever been put through one. I’ve seen them at US airports since, but in Montreal everyone went through them, not just randomly (or “randomly”) selected passengers.
  - Neon Tooth
    
    Time for the $11/hour TSA workers to quit in protest again, amirite folks?
    
    I’d say it’s more up to you to man up and quit flying in protest.
    - g0d5m15t4k3
      
      It is really difficult to stop flying when you have the desire to see the world & a limited amount of time.
      When buying my Ohio to Vancouver tickets, I priced a trip for the same departure dates on a train and it was obscene. The 8ish hour plane ride takes no less than 64 hours in a train (I’d arrive Friday evening after having left Wednesday early morning). Then on the return trip, instead of leaving Monday and getting home Monday, I’d leave Monday and get home Thursday. THURSDAY. I don’t have that much vacation time! Remember, I live in America where vacations are very very short.
      
      It was about $400 more to fly than to take the train but I can’t spend 7 days of my 6 day vacation en route. Yes, 7 days of my 6 day vacation time. I wouldn’t even be able to see the city I was going to and I’d still not return when I need to. If I wanted to just take a train ride, sure, it sounds fun. But I want to visit far off cities.
      
      So I reluctantly bought plane tickets. I don’t have a problem with my body being seen but I know others do. I’m more concerned over the safety of the machine myself. But I can see this being an issue constantly being harped on. From every angle: violation of privacy to violation of humanity to health concerns.
      
      I’d really like to see some reliable data sources studying these machines and their health impacts. And in a whole separate report on how people feel about them. And in another report how much they cost vs. how much they actually work. A lot needs to be done. In the meantime, it just sucks.
      - g0d5m15t4k3
        
        I take that back. I double checked my Amtrak quote. It was only about $150 cheaper to take the train than the plane. I was looking at the one way trip to, not the round trip.
  - Brillobreaks
    
    Canada was the first and so far only place I’ve ever been put through one.
    
    The first time I saw one of these was in college, around 2000/2001. Taking a criminal justice class, and we took a tour of the state prison. They had one setup in one of the higher security portions of the prison, and the guards showed their new toy off for us. I volunteered.
    
    One of the students asked why they used conventional metal detectors at the entrance for staff/guests, and the body scanners for only the prisoners. The guard said prisoners had a lower expectation of privacy, so you’d never see it outside of the prison setting. He mentioned airports, and claimed it would “never fly” with the general public, and then laughed at the horrible pun he made.
    
    Just ten years ago…
  - g0d5m15t4k3
    
    I went to Montreal a few years ago and at the time they didn’t have these scanners. I just got patted down after the metal detector because I had baggy pants. And very superfluously patted down at that. I’m afraid about how things have changed just within the past 5 years.
JayConverse

And this is why I’ve been working out. So screw you, government, my naked photos look pretty good lately.
Paool

I’m on the fence with this one.
On the one hand this seems pretty damn air tight when it comes to weapon/explosives prevention, but the obvious invasiveness is bluntly apparent.
Seems like an apparent 4th amendment violation in the US at least, but that is all hinged on the interpretation of “unreasonable searches and seizures” of the “person” as mentioned in the amendment.
- zyodei
  
  But you’d be wrong.
  
  http://www.nbcdfw.com/news/local/TSA-Agent-Slips-Through-DFW-Body-Scanner-With-a-Gun-116497568.html
  
  No, these scanners (and the TSA in general) fail in every measurable category. They are expensive, invasive, rude, and ineffective.
  
  The only reason the terrorists haven’t blown up another plane recently is because they don’t really want to.
  
  Tell me again, why do we even have a TSA? Why don’t we let the airlines and airports work together to figure out how best to provide security?
  
  http://ancaptees.com/fire-the-tsa-p-117.html
- Anonymous
  
  On the one hand this seems pretty damn air tight when it comes to weapon/explosives prevention, but the obvious invasiveness is bluntly apparent.
  
  Ignoring that hijacking plains to use them as weapons has little value when the passengers will fight back. (i.e. the tactic became ineffective within hours of the first plane crash on 9/11)
  
  Ignoring the whole rest of the airport as a risk (having an employee’s help is probably the easiest way to go)
  
  Ignoring the old prisoners multiple orifice solution.
  
  You still only need something that reflects like skin over whatever you want to sneak in. Say hello to a fat suite and, “Say hello to my liiitle friend.”
  
  so yes, invasive and ineffective.
Layne

Score one for more terror-insanity. Of course, instead of just wasting billions more on security theater, irradiating citizens, and molesting toddlers, our elected officials could just put an end to the obscenity of the TSA. Instead they’d rather let it run endlessly and throw away more good money to treat us all like criminals. Oh well, at least it’s OK with the courts now.

So much for democratic checks and balances.
- Kevin Kenny
  
  “So much for democratic checks and balances.”
  
  The democratic checks and balances have checked and balanced. The people have spoken – through their legislators – that they choose to have intensive security screening. The executive has carried out the law. And now the judiciary has found that the law is validly enacted and enforced.
  
  You see a failure in the process, but there was no failure. You simply are on the losing side of a political argument. A supermajority of our countrymen have spoken.
  
  And the Bill of Rights has always had the qualifier, “unless an awful lot of people believe that the government really needs to ignore the rights.” From the Alien And Sedition Acts of 1798 to the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, our history is full of the willingness to abrogate seeming Constitutional rights in favor of the reassurance that an all-powerful government will take care of us. In the real world, Constitutional rights exist only to the extent that the people respect them. Rather than saying that the procedure is unconstitutional, it’s more accurate to say that the Constitution doesn’t say what you thought it said.
  - Ugly Canuck
    
    Maybe you’re the one who needs to do some reading: the court did indeed find a problem with the TSA’s body scanner, but it was the way in which the rule was created: the TSA instituted these rules without consulting the public in any way, while the Court said that they MUST take public comments, and go through the usual procedures applicable to rules which have a sufficiently substantive effect on the public:
    
    http://www.bloomberg.com/news/2011-07-15/airport-body-scanners-were-improperly-adopted-by-u-s-appeals-court-rules.html
    
    ianal, but it seems to me that the US Constitution, as embodied by the laws passed by the Congress to control what regulations may be put in place by the TSA, was NOT followed by the TSA, as they did not institute the use of these scanners according to the rules which they ought to have followed.
    
    So says the Court: and that’s that “checking and balancing” is thus not “over”, like you assert, but merely begun. R Either the TSA appeals, or it has to hold public hearings and take public comments as to their Regulations mandating the use of these scanners, which it has yet to do.
    
    So maybe BB will tell us where to send our “scanner comments” when the TSA does finally does get around to holding those hearings as the Court has ruled that they must.
    
    Maybe the TSA will be at that time have some evidence showing how effective these gross intrusions on people have actually been in protecting them from harm.
    
    Or maybe that evidence willbe lacking.
    
    In any event, this Court has NOT found “no problems” with what the TSA has done: the rtequirement that people pass through scanners was not properly adopted as a Rule, and must now go through that process, which is an exssential part of the “checking & balancing” process, which Mr Kenny erroneously asserts to have run its course.
    
    In a democracy, the discussion of the fitness of the rules and laws by which we live are ALWAYS open to debate, they are ALWAYS in need of justification – the ‘checking & balancing” NEVER ends, Mr Kenny, in a society of people where “liberty” is and has ever been always more than merely an empty word.
    
    The TSA has not put their “scanner rule” through the mill such rules usually go through to prove their worth, before they are enforceable. Y The TSA thought that they did not need and were under no obligation whatsoever to consult the American people, through the procedures established by law, for their promulgation of this Regulation.
    
    The TSA is wrong about that, according to this judge.
    Let’s see if the TSA appeal, or instead schedule some public hearings of public comments as to the “scanner rule” instead.
    
    Then we shall see if the American people will actually permit that Rule to stand as the TSA wants it to!
  - songofsixpence
    
    What you have said is both entirely true and completely depressing.
    
    Unfortunately, just because most people want something doesn’t mean that it should be done. The framer’s of the constitution recognized this and tried to take that into account, but over time legislator’s have chipped away at the fortifications to appease the most people so that they could stay in power (or even just to make themselves believe they were doing the most good; motivations are irrelevant here).
    
    No matter how much thought I give this topic, I cannot ever come up with any kind of lasting solution. It’s insane.
  - Layne
    
    While you have a point about the checks supposedly working, the balances in this case and in most federal cases, the judiciary has been all too eager to side against constitutionally protected rights.
    
    I cant tell if you’re attempting to be smug, but the Constitution exists very solidly regardless of how people choose to respect it. That’s the final legal protection that’s supposed to keep the law from kicking your door in and then finding something for you to be guilty of doing. In spite of the current class of politicians willing to sell out our nation and pervert any civil liberty, the judiciary is theoretically there to avoid caving in to unreasonable legislation.
    
    Unfortunately, starting with the endless War on Drugs, and continuing to the War on Terror, the bar just keeps getting lowered for the theoretical greater public good. Which at this point seems to involve lots of SWAT teams, barricades, overcrowded jails and being assumed guilty enough for a beatdown and endless legal hassles.
querent

4th amendment?
- ad_absurdum
  
  4th amendment doesn’t apply because you consent to search by going to the airport. The government’s not compelling you to fly places, and it’s your choice whether you want to pass that checkpoint or not.
  - Antinous / Moderator
    
    Then there won’t be any constitutional problem searching you at the end of your driveway any time that you want to leave the house.