{"id":5788,"date":"2011-07-15T15:40:07","date_gmt":"2011-07-15T15:38:07","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-07-15T15:38:07","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5788","title":{"rendered":"Volokh: “DC Circuit Holds That New Airport Screening Security Measures Comply with the Fourth Amendment”"},"content":{"rendered":"

Volokh Conspiracy: DC Circuit Holds That New Airport Screening Security Measures Comply with the Fourth Amendment<\/a> by Orin Kerr:<\/p>\n

The new airport screening measures involving millimeter wave technology and backscatter technology \u2014 together with the opt-out of a pat-down \u2014 have received a great deal of public attention. Back when the new measures were first widely introduced, I blogged about why a Fourth Amendment challenge to the new practices was an uphill battle. Today, the DC Circuit handed down an opinion in EPIC v. Department of Homeland Security<\/a> holding that the new practices comply with the Fourth Amendment. I believe this is the first clear court ruling on the question, and it\u2019s certainly the first from a federal court of appeals. The opinion is by Judge Douglas Ginsburg, and it was joined by Judges Henderson and Tatel.<\/p>\n

…<\/p>\n

That balance clearly favors the Government here. The need to search airline passengers \u201cto ensure public safety can be particularly acute,\u201d Edmond, 531 U.S. at 47\u201348, 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.<\/p>\n

Contrary to the EPIC\u2019s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger\u2019s pocket, progressed (according to the passenger) to the officer\u2019s removing a package of crack cocaine from that pocket. 436 F.3d at 175\u201376. The court noted, however, that its opinion, while describing the search at issue there as \u201cminimally intrusive,\u201d did \u201cnot purport to set the outer limits of intrusiveness in the airport context.\u201d Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.\n<\/p><\/blockquote>\n

It\u2019s a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn\u2019t even think it required any heavy lifting \u2014 just a quick paragraph or two. And notably, no one wrote separately. That\u2019s particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard<\/a> decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.\n<\/p><\/blockquote>\n

On another note, Marian Paterson, 94-Year-Old Woman, Gets TSA Patdown<\/a>, and I’m flying this evening.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-5788","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5788","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5788"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5788\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5788"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5788"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5788"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}