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Law and Politics

On July 20, the Transportation Security Administration (TSA) announced that it would no longer utilize controversial body scanners[1] to screen passengers prior to boarding domestic and international flights in the United States.  These screeners use imaging technology to create an image of the passenger without clothing to determine if any contraband items are secreted upon the person.[2]  The scanners were first deployed in 2007 and are in use across the country.

A controversy surrounds the image created by the scanners and its potential infringement on privacy and fourth amendment rights.  These issues have been covered by many including Wired’s Threat Level Blog.[3]  As Wired reported, the Electronic Privacy Information Center challenged the use of these scanners in federal court. The case dealt with several issues of procedure under the Administrative Procedures Act (APA) 5 U.S.C. §553 as well as claims under the Video Voyeurism Prevention Act 18 U.S.C. §1801, the Privacy Act, 5 U.S.C. §552a and the Fourth Amendment.

The case was decided on July 15, 2011.  The TSA won the case.  The Court of Appeals for the District of Columbia ruled that the TSA could use these scanners.

The Fourth Amendment claim was a slam-dunk for the government.  Judge Douglas Ginsburg (appointed in 1986 by Ronald Reagan) utilized precedent to classify the TSA search as an administrative one; thus, the determination of whether such searches violate the Fourth Amendment calls for a balancing test.  In this case, the government would only need to show that the test is “needed for the promotion of legitimate government interests” in order to outweigh an intrusion on an individual’s privacy.  This balancing test favors the government’s interests since it is easy for the TSA to show that metal detectors are insufficient to identify liquid or powder explosives or other similar contraband on a person.

Five days after receiving a clear victory on the use of these scanners, the TSA announced that it will change software so that the scanners only produce a generic outline of a person—something that will look more like a cookie cutout than the actual individual inside the scanner.  Why would the TSA change its policy so quickly after securing a victory for its policy—a victory that the agency and the Department of Homeland Security fought for before the Court of Appeals?

I can think of two reasons, separate from any technical report or advance in technology for this seemingly contradictory behavior.  First, the reality is that law is not divorced from politics and a legal victory may not suffice for the purposes of governing.   While the Court of Appeals did approve the use of the technology, the court of public opinion was not necessarily in agreement.  Regardless of the case outcome, the public viewed the procedure as intrusive.  Soon after implementation there was a “national opt-out day” at all national airports.  And as ABC reported in November of 2010[4], support for the TSA procedures dropped precipitously from the beginning of that month as information about the images produced became available.[5]  Additionally, support dropped even more for those surveyed that also fly at least once a year.  The Texas Legislature in January of 2011 tried to pass a law prohibiting some TSA pat-downs and a New York legislator introduced similar legislation in late 2010.[6]  In other words, while the judges of the Court of Appeals for the District of Columbia, the second most prestigious court in our nation, may not find a Fourth Amendment violation when balancing the rights of the individual versus the interest of the government, the public will not necessarily come to the same conclusion.  And the court ruling simply could not provide the administration with enough cover to continue with this unpopular program, particularly when an alternative exists.

Second, although interest groups take cases to court in hopes of a judicial victory, even a defeat can serve important purposes and goals. The challenge in federal court was one prong of a multifaceted interest group campaign to change the TSA policy.  First, the Electronic Privacy Information Center received publicity and kudos from its members for fighting the policy as a result of their challenges to the policy..  Additionally, the case increased the issue’s visibility. Studies show that interest groups use multiple tactics and the use of the courts is often part of a larger strategy.  Seen this way, the court case was been a one means to an end.  EPIC kept the pressure on the TSA and the administration for several years—ever since the introduction of the technology; they lost in court but they won in policy.   The courts are only part of a very complex political system and the victories studied in constitutional law must be placed in the context of the time period and the decisions of the other branches of government, the states, and the people.  Legal victories can create or alter policy; they cannot fully shield politicians and bureaucrats from the pressure exerted by interest groups or from the discomfort those policies create among the public.


[1] There are two different types of scanners.  One that uses millimeter wave technology and one that uses backscatter technology.  The former produces a more defined image of the naked body although facial features are blurred.  The latter also blurs the face, and produces a less refined view of the individual.

[2] The TSA provided an alternative for those wishing to avoid the scanners—a physical search/pat down by a TSA officer.  Those few that took the alternative were equally offended by that procedure.

[3] http://www.wired.com/threatlevel/2011/07/ts/  last accessed on August 11, 2011.

[5] In fact, Gizmodo broke a story that over 35,000 pictures from the scanners were leaked.  See http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans.

[6] The bills did not pass the legislatures so we can elide the clear constitutional problems with pre-emption here.

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