Court: Naked Scanners Are Constitutional; But TSA Should Have Asked For Public Comment

This isn't a huge surprise, as we said when the lawsuit was first filed, but EPIC has failed in its attempt to have the TSA's naked scanners declared unconstitutional. The court seems to think the scans are just dandy, though it had some trouble with how they were implemented. There were two key legal points raised by EPIC. The first was that implementing the naked scanners without a public review violated the Administrative Procedures Act. The court seems sympathetic to this argument:

The TSA seems to think it significant that there are no AIT scanners at some airports and the agency retains the discretion to stop using the scanners where they are in place. More clearly significant is that a passenger is bound to comply with whatever screening procedure the TSA is using on the date he is to fly at the airport from which his flight departs. 49 C.F.R. § 1540.105(a)(2) (no passenger may enter the “sterile area” of an airport “without complying with the systems, measures, or procedures being applied to control access to” that area). To be sure, he can opt for a patdown but, as the TSA conceded at oral argument, the agency has not argued that option makes its screening procedures nonbinding and we therefore do not consider the possibility. We are left, then, with the argument that a passenger is not bound to comply with the set of choices presented by the TSA when he arrives at the security checkpoint, which is absurd.

In sum, the TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings.

Still... even then, it says that ordering the TSA to stop using the machines would "severely disrupt an essential security operation," so it will not halt the use of the machines, even if it expects the TSA to begin holding public review of them.

The second key argument (there are a few other lesser arguments) is the Fourth Amendment claim. And here, the court just doesn't see it.

As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.... An administrative search does not require individualized suspicion.... (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” ... and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

This is, again, not surprising, but disappointing. It's rulings like this that allow for the gradual disposal of the 4th Amendment, by simply stretching the interpretation further and further each time, until there's just nothing left at all.

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