TSA’s New Technology: Will it pass inspection in a court of law? - Fordham Intellectual Property, Media & Entertainment Law Journal
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TSA’s New Technology: Will it pass inspection in a court of law?

TSA’s New Technology: Will it pass inspection in a court of law?

In March 2010, the Transportation Security Administration (TSA) rolled out 486 Advanced Imaging Technology (AIT) machines for its enhanced security screening (also known as backscatter or millimeter wave imaging).  Effective October 29, 2010, all passengers were to be subjected to AIT.  If they opted out (due to objections ranging from health issues to privacy concerns to religious complaints), passengers would be subjected to an “enhanced” pat down.  These were the only two options for passengers trying to fly out of all major airports.

Controversy surrounded the new screening policy.  Throughout 2010, over 30,000 images taken by AITs managed by the U.S. Marshals Service were stored and leaked via internet.  Similarly, TSA officials have bragged about using camera phones to share the AIT images.  Created by exposure to radiation, which detects both hard and soft tissues, the images depict “naked” passengers.  In response to the public backlash surrounding this new system, TSA created a blog on November 18, 2010, entitled TSA Myth or Fact: Leaked Images, Handcuffed Hosts, Religious Garb and More! If not more alarming than the exclamation point in the title, the blog has very little factual evidence; rather than listing statistics, the TSA describes complaint rates only vaguely, as “extremely low.”  A lot of spin that hardly reconciles the questions the blog is presumed to answer.

Those opposed to the forced choice were given a strong voice when John Tyner recorded his TSA encounter on his mobile phone.  He refused to go through the AIT because other passengers were only being subjected to the regular metal detectors.  When he was pulled aside for an “enhanced” pat down, he told the agent to go ahead and pat him down but “don’t touch [his] junk!” because he did not want sexual assault to be a condition of his flying.  The agent told him it was not sexual assault and Tyner replied, “It would be if you were not the government.”  Observe the entire encounter for yourself.

A national protest was summoned in response to Tyner’s experience.  The day before Thanksgiving 2010 became National Opt-Out Day.  On the busiest flying day of the year, passengers who disagreed with the new policies (for whichever reason that suited them) were to opt-out of the thirty-second AIT scan and require the TSA agents to perform the full two minute “enhanced” pat down.  The goal was to slow down security and show how inefficient, ineffective and unreasonable it was to subject passengers to the new security measures. The next day, the protest did not have the detrimental effect that was intended because TSA Administrator John Pistole relaxed his rigid stance that the policies would remain unchanged in light of public outcry.  Supporters of the heightened security measures said that the protest fizzled out because it was simply not a big deal.  But the effect of the public response was undeniable.

At a lecture recently sponsored by Fordham Law Review, Professor Jeffrey Rosen of George Washington University Law, explained that the United States Department of Homeland Security was not the first to implement these devices.  Europe had been using the millimeter wave imaging machines for a while.  And, like the United States, Pacific Northwest (the company that makes these machines) gave Europe two options:  machines that showed the graphic and humiliating naked bodies or machines that scrambled the image into a non-humiliating outline.  The company reported that the two options were equally effective. European airports that chose to implement the technology chose to use scrambled image machines.  The choice made by the Department of Homeland Security? The naked imaging.  As of February 2011, TSA has started to roll out scrambled image machines in three major airports.

Regardless of the fact that these new scrambled image machines do not actually address the health and religious concerns that many are worried about, of the question remains of what to do with those who may be identified by AIT for having weapons and dangerous materials on their person.  If a TSA agent actually finds some kind of actual weapon or bomb-like material on a traveler, is that traveler subject to criminal prosecution?  If this person is prosecuted or thrown in jail, TSA would need evidence that the suspicious or dangerous materials were found on the subject. The TSA blog claims that the machines are not capable of saving the images and that there are no identifying features of individuals anyway. What is to stop TSA or individuals from abusing this lack of evidence?  Might it allow for the subject to claim the materials were planted on him?  What if this was happening in a situation in which discrimination or racial profiling was claimed?

The legal ramifications of AITs are currently unknown, but we can expect to see some of these questions addressed very soon.

Katherine Kikes