US Court of Appeals delivers split judgment

Posted on by

Some time ago, the Electronic Privacy Information Center (EPIC) filed suit alleging that the TSA porno scanners violate the Fourth Amendment‘s right to privacy and protection from unreasonable searches. They also argued that the scanners were implemented pursuant to regulations that required a period of public comment and the TSA never solicited such comment prior to the implementation of the devices.

The US Court of the Appeals has ruled that the devices do not violate the Fourth Amendment, but it also ruled that public comment should have been sought and considered in connection with the devices.  The first conclusion specifically relied on the fact that the scanners are entirely voluntary; a passenger may skip the scanner and subject themselves to an intense groping (aka a “pat down”).

The Fourth Amendment analysis by the court was only two pages of an 18 page opinion.

From the decision:

It is clear that by producing an image of the unclothed passenger, an AIT [advanced imaging technology] scanner intrudes upon his or her personal privacy in a way a magnetometer does not. Therefore, regardless whether this is a ‘new substantive burden,’ the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking.

Indeed, few if any regulatory procedures impose directly and significantly upon so many members of the public. Not surprisingly, therefore, much public concern and media coverage have been focused upon issues of privacy, safety, and efficacy, each of which no doubt would have been the subject of many comments had the TSA seen fit to solicit comments upon a proposal to use AIT for primary screening.

EPIC’s press release is here. And here is a good analysis of the decision, together with the full text thereof.

No word yet on an appeal to the Supreme Court.

Related articles