Before anyone starts clapping, it lost. And it appealed. And, for the most part, it lost again. The DC Circuit issued its opinion that, with surprising brevity, dismissed the argument that scanners are unnecessarily intrusive and therefore implicate Fourth Amendment proscription. Via Orin Kerr at Volokh Conspiracy:
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. See United States v. Aukai, 497 F.3d 955, 958–63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499–501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47–48 (2000) (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.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, 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.
While the court's holding may not be entirely surprising, given the general deference that courts offer executive branch initiatives on hot potato issues and matters of security, it's striking that the court simply accepted the notion, without the slightest skepticism, that scanners deter terrorism, thereby making us safer. It's as if the court read the TSA's press releases and swallowed them whole.
Much has been written by people with actual knowledge on the subject, like security expert Bruce Schneier, explaining at great length and in substantive detail why the TSA's initiatives do not serve legitimate purposes, do not make anyone safer and constitute security theater rather than actual security.
Yet nowhere does the court recognize that there is any question, none, that the scanners or their alternative "patdown" (with or without insertion of gloved TSA hands into vaginas) may be a mere show to flame the public's security fears. For the less cynical, the court didn't even consider that it's a show to pacify the public, and provide a paid occupation that allows adults to touch the nubile breasts of young girls.
It's astounding that the judges, with the opinion written by Judge Douglas Ginsburg, and joined by Judges Henderson and Tatel, swallowed the concept that the TSA knows what it's doing, and what it's doing must be sound because, well, the TSA says so, without any scrutiny whatsoever. What strikes so many of us as monumentally dubious initiatives, conduct that is not only horribly intrusive but largely ineffective in protecting anyone from the exceptionally small risk of harm by terrorists blowing up a plane, is wholly ignored.
Yet the decision goes on to compound the glaring gap in its discussion of balancing. Even if we are to accept at face value, as the court does, that the TSA's grope and scope makes flying safer, the court needs to get its scale tested.
In course of "protecting" fliers from terrorism, the statistics need to be considered: Out of the many millions of people who have gone through TSA screening at whatever level of scrutiny existed since 2001, they have come up with a grand total of 25,000 security breaches and failed to catch a terrorist. From one perspective, this suggests success, and the TSA is sooo effective that they've kept terrorists away from airplane.
From another perspective, however, they have intruded into the lives of many millions of barefoot people, most of which have nothing to commend them to be a threat to anyone, for the risk that eventually a terrorist may sneak onto a plane and do something more serious than light his underpants on fire.
Did the court balance this in its holding? Nope.
The rationale blindly adopted by the court seems to cover pretty much anything the TSA might deign to do. After all, would vaginal and anal cavity searches of toddlers make us potentially safer? Sure. Who can say for sure that terrorists wouldn't sacrifice a baby by putting an explosive in there. It could happen. And so every toddler should be subject to a gloved finger and some KY jelly? That might foment revolution, but the D.C. Circuit panel would approve it in balance.
How many millions of fliers, of citizens, of people, must have their personal privacy and physical integrity sacrificed in the off-chance that the TSA might, eventually, stop a terrorist? By this decision, as many as it takes. The balance, by definition, is always in favor of the government and whatever mechanisms it chooses use.
As long as its purpose is our safety, the TSA has a free hand. And on that hand is a latex glove with the power to stick it between your legs. Don't complain, since your plane arrived at its destination without blowing up. Isn't it worth a finger up your child's butt?