Privacy Law

Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test

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The U.S. Supreme Court hasn’t ruled on the constitutionality of new airport screening technology that produces revealing body images and the alternative full-body pat downs, but one justice has looked at the issue.

Justice Samuel A. Alito Jr. evaluated airport screening procedures when he was a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, according to George Washington University law professor Jeffrey Rosen. In an opinion column in the Washington Post, Rosen asserts that the full body scanners now being used at airports would fail Alito’s Fourth Amendment test, set out in a 2006 opinion.

Alito upheld searches using magnetometers and handheld wands, saying the screening was “minimally intrusive” and “effective.” But Rosen doesn’t think that test would be satisfied by the methods being used now. He notes these problems:

• There may be a better alternative than the full-body scans. Dutch airports use a different technology that doesn’t project an image unless a suspicious material is found. Only the area of suspicion is revealed, and the rest of the body is a “blob-like human image,” Rosen says. U.S. officials have said the alternative technology produces a high rate of false positives. Even so, Rosen suggests false positives leading to pat-down searches may be less intrusive than U.S. machines projecting full body images and the full pat-downs performed on those who object.

• Full body scanners are capable of recording and storing images when in “test” mode. U.S. officials have said the images aren’t being recorded or stored, but Rosen fears abuses.

• Some tests have shown that the full body scanners aren’t good at detecting low-density explosives, the kind used by the would-be underwear bomber last Christmas. That could mean the scanners wouldn’t satisfy Alito’s test for effectiveness, according to Rosen.

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