Airline passengers in the United States understand they will be treated as suspected terrorists when going through airport security checkpoints.

Yet nearly a decade after the Sept. 11, 2001 terror attacks, airport security has become a lot more invasive with the rollout of the so-called “advanced imaging technology” scanners, paid for with $1 billion in stimulus funds.

The scanners — now deployed at about 78 airports — use either millimeter wave or backscatter technology to create a virtual picture of the traveler’s naked body. The image is then viewed by a screener — usually with the Transportation Security Agency — in a sequestered room away from the checkpoint.

First tested in 2007, the scanners became the object of intense media and public scrutiny around Thanksgiving, but public discontent over them appears to have died down since then. That hasn’t stopped advocates at the Electronic Privacy Information Center from filing a lawsuit against the TSA. On March 10, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments in the case, which could result in a court order blocking the scanners from being used at airports nationwide.

“Right now TSA officials basically have a daylong peep show of passengers,” Marc Rotenberg, EPIC’s executive director, said in a recent interview.

In this three-part series, Threat Level examines the issues raised by the scanners and the high-stakes court challenge, beginning with the core constitutional claim made by the Washington-based EPIC: that the scanners are a Fourth Amendment breach of travelers’ privacy.

What the TSA sees using millimeter wave technology

Interviews with several legal experts, and an examination of previous cases, suggests this Fourth Amendment claim will not gain much traction with the appeals court. A series of appellate court rulings since the 1970s have chipped away at travelers’ privacy rights, making the nude scanners virtually unassailable from a Fourth Amendment standpoint.

In 1974, the 2nd U.S. Circuit Court of Appeals upheld constitutional challenges to metal detectors and warrantless pat-downs “to prevent airplane hijacking.” The same New York-based appellate court in 2006 said it was okay for New York City subway officials to search passengers for bombs, without a warrant, because “the risk to public safety is substantial and real.”

“I would expect the courts are going to be quite deferential. They don’t want it on their hands if a terrorist gets through and causes mass deaths,” said Renee Lerner, a George Washington University Law School professor. “This basically falls under a public-safety exemption to a warrant requirement. ”

Chris Calabrese, legislative counsel for the American Civil Liberties Union, concedes the scanner flap is “a difficult Fourth Amendment issue because the case law is so bad.” The ACLU has refrained from challenging the scanners in court.

“The Constitution says you won’t be searched without probable cause. Of course there is an exception for that with administrative searches,” he said. “There does reach a point we have to ask ourselves how far down the technological path do we want to go in chasing the next technique?”

The government noted in a court filing that the scanners are not mandatory for passengers, who “may opt out in favor of a physical pat-down” which includes the genital area. The government said 98 percent of passengers selected the scanners rather than a physical search.

The TSA said it would not comment on the litigation. But in its court filings, the agency argues that it has adequate safeguards in place to ensure the privacy of passengers, and that advanced imaging technology is “fully consistent with both constitutional and statutory requirements.”

A security officer, the TSA notes, views only the images of the passengers, while other agents see the actual person. Though the machines do have the capacity to store and transmit the images, TSA claims it disables that functionality before deploying each machine. Images “cannot be saved or transmitted for any purpose,” the agency wrote in EPIC’s lawsuit.

The courts, the TSA notes, “have invariably upheld airport screening procedures as ‘special-needs searches’ or ‘administrative searches’ under the Fourth Amendment.”

The government began deploying the scanners in 2007 in limited field trials. By January 2011, their numbers had grown to about 500 units, with another 500 to be fielded in 2011. Perhaps moved by the public pressure last fall, the government this month began testing new scanner software at airports in Las Vegas, Atlanta and Washington, D.C.. The new software produces a generic outline of the passenger instead of a near-nude image.

Rotenberg, of EPIC, said that if the upgrade is applied nationwide, it might address some of his group’s privacy concerns.

But, he said, “It doesn’t resolve the health issue or the effectiveness issue of these scanners.”

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