Revenge of the Body Scanners

By William Fisher

Privacy advocates today called on the Transportation Security Administration (TSA) to end its controversial new initiative of whole-body scans and enhanced pat-downs of airline passengers, calling the program “dangerous to health, ineffective and unconstitutional.”

Led by consumer advocate Ralph Nader, a group of organizations held a telephonic news conference to insist that the “strip-search” program be suspended and turned over the Congress to investigate.

Nader said, “the machines are ineffective, the pat-downs are too invasive, and the use of radioactive technology poses health risks.” Congress should look into these issues, he said.

Nader cited testimony from a number of physicians who agreed that radioactivity “could cause skin problems” and might pose a public health threat to passengers.

Nader said there is also the issue of how protective these TSA initiatives are. He pointed out that “passengers and crew of 17,000 business jets are not screened at all.”

He added: “The TSA has no strategy. This new program is a commercially driven, knee jerk reaction to the shoe bomber and the underpants bomber. The program should be ended and turned over to Congress.”

Additionally, he said, “What concerns us is the TSA’s secrecy – their obscurantist approach to government...not responding to members of congress, the press or the public.”

In San Diego yesterday, an airline ticket-holder declined to use the electronic body scanner and opted for a pat-down instead. The TSA inspector then explained the intimate anatomic details of the pat-down, at which point the would0-be passenger threatened to sue of the TSA official touched his private parts. He was denied access to the aircraft and threatened with arrest and a civil fine.

Another conference participant, Chip Pitts, a lecturer in law at Stanford University law school, talked about the ineffectiveness of the body scanning technology.
“Despite the secret, corrupt, and deceptive claims under which these machines have been sold by DHS, TSA, and their contract manufacturers, the body scanners don’t detect the sorts of plastic explosives that were their main justification. They’re easily evaded by real terrorists even as they render everyone else a suspect, increasingly relegating the innocent to an unacceptable choice of a radiation scan, or a groping pat-down, or not flying at all.”

“Adopted with utter disregard for a host of laws including the Administrative Procedure Act, the Privacy Act, and other specific statutes, these machines not only reverse the presumption of innocence, but violate the Fourth Amendment and other core provisions of the Bill of Rights, including by placing discriminatory burdens and risks on vulnerable groups and individuals such as religious minorities, children, pregnant women, airport crews, and frequent travelers,” he added.

“They’re thus of a piece with other discredited post-9/11 programs like ‘Total Information Awareness’, ‘Secure Flight,’ and the massive warrantless surveillance and ongoing data mining programs, representing a misplaced techno-utopianism that’s utterly ineffective in achieving the promised objectives -- but quite effective in crushing our deepest values and true security, “ he said.

Other groups participating in the conference included the Electronic Privacy Information Center (EPIC), Flyers' Rights. Org, We Won’t Fly. org., and the Libertarian Party.

Kate Hanni of Flyers' Rights.org., which claims to have 30,000 members, asked, “Are we getting ahead of terrorists or merely reacting to recent events?”.

Mark Hinkle of the Libertarian Party, said “Everyone who cares about civil liberties should be outraged. The Obama administration shows no respect for the constitution. It believes there is no limit on government power.”

We won't fly.org is promoting a national opt-out day, Nov. 24, to encourage people to protest the TSA program by not flying. Nov. 24 comes at the start of busiest travel season of the year.

EPIC has filed a lawsuit to suspend the body scanner program, calling it "unlawful, invasive, and ineffective." Opposition to the program is growing. The Libertarian Party, the American Pilots Association, Airline CEOs, flyers rights organizations, religious groups, and others are calling for an end to invasive searches at airports. A National Opt-Out Day is scheduled for November 24.

Libertarian Party Chair Mark Hinkle said today, "The TSA should end the strip-search machine program immediately. We've reached a point where our government has no qualms about humiliating us." Hinkle expressed support for the EPIC lawsuit aimed at suspending the body scanner program. Hinkle further said, "We encourage Americans to call their newly-elected members of Congress and tell them that they don't want this expensive, worthless, intrusive, unconstitutional program."

The EPIC lawsuit challenges the unilateral decision of the TSA to make body scanners the primary screening technique in U.S. airports. Three frequent air travelers are joining EPIC in the lawsuit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations legal counsel Nadhira Al-Khalili.

The Petitioners have brought claims under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment. The Petitioners are seeking the suspension of the body scanner program.

In its brief, EPIC argues that the Department of Homeland Security "has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history." EPIC further argues that the Transportation Security Administration "must comply with relevant law, and it must not be permitted to engage in such a fundamental change in agency practice without providing the public the opportunity to express its views."