West Coast Publishing Surveillance 2015 november page
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Body ScannersAff Laundry ListsBody scanners allow a host of privacy violations and racist treatment of airline passengersTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview While praised for their detection capabilities, 124 bodyscans present alarming privacy concerns for air travelers. 125 In its unprocessed form, the technology produces images described as "so sharp that the shape of a person's navel is visible, along with the shapes of other, more private parts."126 The American Civil Liberties Union (the "ACLU") likens the technology to a "virtual strip search" that is highly invasive and not narrowly tailored, absent probable cause, to meet the needs of airport security. 2 7 In response to the TSA pilot program in Phoenix, the ACLU's Timothy D. Sparapani appeared before the Senate Committee on Commerce, Science, and Transportation to condemn the TSA's authorization and funding of body-scan machines.12 His concerns included that use of the machines will lead to unnecessary secondary searches, 29 that passengers would be required to display personal details of their bodies, 130 and the possibility that the images could be reproduced or appear on the Internet.131 Concerns also exist over the potential for selective or improper use of the technology based on cultural or racial factors. 132 Body scanners violate privacy – the impact is personal trauma for survivors of abuse – they also increase cancer risksDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf The personal trauma of facing the TSA's airport screening process was related to Congress in March 2011 in testimony by Alaska State Rep. Sharon Cissna, who had had a mastectomy due to breast cancer. Cissna was stopped at an airport when she refused to undergo a full-body scan, which would have disclosed her physical anomaly. "The TSA agent began to tell me what would soon happen regarding where she was going to touch me and the force-forgotten memory of the previous intensive physical search returned," Cissna said. When Cissna refused the additional screening, she was surrounded by police, TSA officials and airport employees, which she said could have been "very intimidating because of their positions of authority and the difference in height between me and those surrounding me." Cissna provided a passionate critique of the government's security system. "For nearly fifty years I’ve fought for the rights of abuse survivors and it is this population that is the most harmed by unwanted physical touch. My wonderful state of Alaska depends on air flight as a mandatory means of transportation, both intra and interstate of our vast land. We also sadly rank first in the nation for both men and women who have been abused. Logic suggests that the recent introduction of the full body scan (itself a potentially harmful source of radiation) is the very last thing a molested person could deal with because it would result in yet more trauma from the groping of strangers. Most tragic of these policies are the silent masses that are traumatized and dishonored at the hands of their own government in the name of ‘safety’ policies." (Cissna, March 201). 1st AmendmentBody scanners violate the religious freedom of Muslims and other minority religious groupsDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf The public interest groups argue that the airport scanners also violate the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person's exercise of religion unless the government demonstrates a compelling interest. The groups' petition contends that the scanners violation the religious tenets of Muslims and other spiritual groups by allow the government to capture photos of passenger's naked bodies. The scanners have been banned in some Muslim countries 4th AmendmentBody scanners violate the Fourth Amendment – degree of intrusionAndrew Welch, JD Candidate at the University of Denver Sturm College of Law, 2010, “Full-Body Scanners: Full Protection from Terrorist Attacks or Full-On Violation of the Constitution?” http://www.davidrasnick.com/Liberty_files/Welch%202010%20Body-Scanners.pdf The third and final prong 157 of the test-degree of intrusion-could spell doom for airport virtual strip searches. The Skipwith court recognized the intrusion of airport searches as "inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating."158 However, it spent very little time discussing the intrusive nature of the searches and instead addressed the factors that it claimed made airport searches less offensive than in other contexts.159 The court stated that the search of Skipwith was not intrusive to the degree of unreasonableness because of the "almost complete absence of any stigma" of being searched at the airport, a known and designated search point. 160 Distinguishing airport searches from those conducted on "dark and lonely streets at night/' the court was confident that the "circumstances under which the airport search is conducted make it much less likely that abuses will occur."161 The argument that there was no stigma attached to Skipwith's search would not have held water had Skipwith been searched by a full-body scanner. Abuses and indiscretion are sure to follow a virtual strip search. One need only ask Rolando Negrin, a TSA worker at the Miami International Airport, about the stigma associated with being searched by the full-body scanners.162 Mr. Negrin finally snapped after being subjected to jokes about the size of his genitalia on a daily basis. 163 The daily teasing started when Mr. Negrin stepped through a full-body scanner as part of a training exercise and his supervisor started to make fun of his genitalia, which was made visible by the machine.164 Because the search reveals intimate and private areas of one's body, the stigma is inherent. Body scanners violate the right to privacy and the Fourth Amendment – neg claims about alternatives and scanners’ effectiveness are wrongDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf The government's assurances continue to be questioned by privacy, consumer rights, and civil rights organizations that contend that the full-body scanners produce detailed images that are the equivalent to a "digital strip-search." Marc Rotenberg, executive director of Electronic Privacy Information Center, argues that "[w]ithout a warrant, the government doesn’t have a right to peer beneath your clothes without probable cause." (Rotenberg, 2010, p. 5.) According to passenger complaints filed with TSA and obtained by EPIC, airport personnel have been negligent about explaining alternative screening procedures and in some cases have mandated that passengers undergo whole-body screening. In its petition to DHS, the privacy group argued that "as a matter of pattern, practice and policy, the TSA does not offer air travelers a meaningful alternative to [fullbody scanner] searches in airports equipped with FBS devices." Legal experts disagree on the government's authority to use full-body scanners. The courts tend to give great deference to the government's concerns about national security, noted Jeffrey Rosen, law professor at George Washington University and author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age." "But in this case, there's strong argument that the TSA's measures violate the Fourth Amendment," according to Rosen, "'non-routine' searches, such as strip-searches or body-cavity searches, require some individualized suspicion -- that is, some cause to suspect a particular traveler of wrongdoing. Neither virtual strip-searches nor intrusive pat-downs should be considered 'routine,' and therefore courts should rule that neither can be used for primary screening...They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband." (Rosen in the Washington Post, 2010, p. 6 of printout) 4th Amendment – AT: Border Search ExemptionAir travel is mostly domestic – a broad border exemption doesn’t applyDaniel S. Harawa, JD, Georgetown University Law Center, 2013, “The Post-TSA Airport: A Constitution Free Zone?” http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=2327&context=plr The border search precedent, primarily relied on by the Fifth Circuit in Skipwith, does not fit precisely with airport screening given that most passengers screened in airports are traveling domestically or out of the United States. In creating the border exception caveat, the Supreme Court noted the “distinction between searches within this country, requiring probable cause, and border searches.”199 The border search exception was in large part justified by the Executive’s power to deal in foreign commerce and to secure the borders.200 The executive powers at play at the border are not implicated in domestic travel. Thus, given the ill fit of the analogy, this exception too can be dispatched when assessing the constitutionality of airport security screening. 4th Amendment – AT: Consent DoctrineThe consent doctrine doesn’t apply – recent cases ruled against itTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview Second, even if relevant, the consent doctrine is largely inconsistent with more recent administrative search jurisprudence. "Consent" is given, as a matter of law, only where the individual submits to the search freely and without coercion."' Therefore, "consent," as recognized in more recent case law, is not invoked where an individual must elect between submitting to a government-operated search and abstaining from air travel.179 Rather, such a decision invokes coercion, rendering any consideration of the element of consent inappropriate. 80 The consent doctrine is nonsense – the government can’t force you to choose between privacy and your right to travelAndrew Welch, JD Candidate at the University of Denver Sturm College of Law, 2010, “Full-Body Scanners: Full Protection from Terrorist Attacks or Full-On Violation of the Constitution?” http://www.davidrasnick.com/Liberty_files/Welch%202010%20Body-Scanners.pdf The court rejected the government's argument that the suppressed evidence should have come in because the defendant had consented to the search by attempting to board the plane. 170 The Eighth Circuit agreed with the district court that this act alone did not constitute consent in any meaningful sense . . .. Compelling the defendant to choose between exercising Fourth Amendment rights and his right to travel constitutes coercion; the government cannot be said to have established that the defendant freely and voluntarily consent[ ed] to the search when to do otherwise would have meant foregoing the constitutional right to travel. 171 Compelling travelers to submit to a virtual strip search before exercising their constitutionally guaranteed right to travel (especially when the search's degree of intrusiveness is much greater than its efficacy) can hardly be called free and voluntary consent. 4th Amendment – AT: Older Case LawYou should be skeptical of older cases – body scanners are much more invasive and publicly violate privacy rightsTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview Airport security systems have evolved over time.190 Today, walk-through magnetometers are seen as commonplace and routine, particularly in the setting of airport screening."191 Accordingly, magnetometer searches are widely upheld as a minimal invasion of privacy that "does not annoy, frighten or humiliate those who pass through it.' 192 Body-scan searches, however, are not constitutionally comparable. The privacy intrusions of backscatter and millimeter wave devices are significant. 193 Absent the use of privacy filtering software, the technology produces extremely detailed images that expose intimate parts of the body and invade basic privacy expectations.194 Not only do body-scans subject travelers to this "virtual strip search," 195 but the search is conducted in front of a captive audience of fellow travelers, all apparently aware of the fact that this person's naked body is being remotely viewed. 196 Therefore, as compared to minimally invasive magnetometer searches, body-scans present a much higher potential for humiliation. 4th Amendment – AT: Privacy Safeguards – Terror DA Double BindIf they win that privacy safeguards exist, those are insufficient to solve the aff, but they also make threat detection less effective – so they take out their own impactTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview Moreover, while the government has made steps to mitigate the invasive qualities of the technology, those very same efforts degrade the technology's detection capability to the point where it loses the ability to detect certain threatening objects.238 While the modified, "masking" form of the technology would likely still enhance detection capabilities over current technologies,239 potential terrorists would have a dangerous advantage: knowledge of what kinds of modern weapons can still evade detection.240 Therefore, in order for the technology to significantly enhance detection capability, the images would have to be graphic. However, the graphic, unmodified form of the technology, which exposes genitalia and fat folds among other private parts of the body, 241 is more analogous to a "full" search than it is to a "minimally invasive" magnetometer search. Therefore, despite the potential for substantial improvements in detection capability, the unmodified technology "peers beneath clothing" in a manner that per se violates the tailoring requirement of the administrative search doctrine.242 Meanwhile, the modified images, given their sacrificed detection capability, do not offer the kind of substantial improvement in detection capability to justify the still highly invasive nature of the technology.243 4th Amendment – AT: Terry StopsThe Terry decision doesn’t apply – it’s too broad and would cause unjustified privacy violationsDaniel S. Harawa, JD, Georgetown University Law Center, 2013, “The Post-TSA Airport: A Constitution Free Zone?” http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=2327&context=plr Two weeks after Skipwith, the Ninth Circuit also rejected the notion that Terry justifies airport security measures in United States v. Davis.172 In that case, the defendant’s briefcase was opened and searched as part of a routine check, during the course of which a handgun was found.173 The defendant challenged the search as a violation of his Fourth Amendment rights.174 After a lengthy recount of the then-recent phenomenon of skyjacking, the Ninth Circuit found that airport security screening is not per se unconstitutional.175 The court, however, rejected that Terry could justify general airport screening given that there was no particularized suspicion for all travelers subjected to the screening process and that the scope of airport screening extends beyond the measures necessary to assure a passenger does not have a weapon immediately available for use against the screening agents.176 The court reasoned that if Terry was extended “to authorize airport screening searches” the result would be “intrusions upon privacy unwarranted by the need.”177 Thus, the Ninth Circuit had to look elsewhere to justify airport screening in the face of pressing national security interests. HealthBody scanners increase cancer risks – industry figures are biasedDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf Some medical experts warn that the whole-body scanners could present safety concerns for passengers that undergo screening and for airport personnel who work near the scanners. In an April letter to White House science advisor John Holdren, four University of California scientists warned that radiation from the scanners has been underestimated and could cause health impacts in children, older travelers, pregnant women, and individuals with a greater susceptibility to cancer. Calling for a thorough review of the potential health impacts, the scientists concluded that "it appears that real independent safety data do not exist." Scanners expose airport workers to harmful doses of radiationDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf But as evidence emerged that government had saved body image scans, six Senators sent a letter to the U.S. Marshal Service asking for a full explanation of the privacy practices. In addition, Senators Susan Collins, R-Maine; Richard Burr, R-N.C.; and Tom Coburn, R-Okla., wrote to DHS secretary Janet Napolitano objecting to the government's plans to expand the airport body scanner program in light of potential health concerns. The lawmakers asked "why the Department continues to purchase this technology when legitimate concerns about its safety appear to remain unanswered." The Senators were particularly concerned that airport personnel could receive multiple doses of radiation every work day. They urged the agency to work with independent experts to study the technology's health effects on travelers and airport personnel. Racism + AT: SafeguardsImages on body scanners allow for racial profiling at airports – placing officers remotely doesn’t resolve itTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview Third, body-scan searches introduce a subjective element into the primary screening process that does not exist with magnetometer searches. While magnetometers automatically detect metallic items, body-scans require the intervention of a human element whereby a screening officer must subjectively differentiate between threatening and non-threatening items displayed on a screen.202 This subjective feature implicates two potentially intrusive scenarios not seen with magnetometer searches. First, there is a fear that the screening officers may consider race, sex, weight, or other impermissible factors when determining whether the passenger poses a threat that requires further inquiry.203 While the officers are remotely located, the images are detailed in such a manner that a screening officer could potentially be made aware of these physical characteristics. 20 4 Again, magnetometers do not present similar concerns. AT: Terror DA – Link TurnBody scanners turn terrorism – divert security personnel by producing ‘false positives’Daphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf Fred H. Cate, a law professor at Indiana University's Center for Applied Cybersecurity Research, states that the scanners detect so many false reports of anomalies that "the AITs are not merely failing in practice to protect the air transport infrastructure against threats, but are actually interfering with TSA agents' ability to do so by sending them on so many wild good chases." (Cate, March 2011, p.9--new report) AT: Terror DA – Scanners FailTerrorists can outwit body scannersAndrew Welch, JD Candidate at the University of Denver Sturm College of Law, 2010, “Full-Body Scanners: Full Protection from Terrorist Attacks or Full-On Violation of the Constitution?” http://www.davidrasnick.com/Liberty_files/Welch%202010%20Body-Scanners.pdf An argument is being made that terrorists can hide explosives by molding them against their body, putting them in body cavities, or placing them in folds of skin. 143 This would make explosives and the like impossible to detect with a full-body scan. Rumors have even been reported that women suicide bombers, recruited by al-Qaida, are having explosives inserted into their breasts using techniques similar to breast augmentation surgery.144 As the screening technology adapts so do the terrorists. This is not to say that it is a winless battle, but it makes it that much more imperative to ensure that law-abiding Americans are not subjected to humiliating, intrusive, and most importantly, unreasonable searches that in the end are not as effective at stopping terrorists as one might think. We must be very careful when asking citizens to trade their privacy in the hope for safety. TSA checkpoints have failed numerous governmental auditsTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview The TSA has remained secretive about the specific results of these audits.0 1 However, the Government Accountability Office was particularly forthcoming in a November 15, 2007 preliminary report detailing the result of a series of tests performed by the Office. 0 2 The report showed that investigators were successful in passing through security checkpoints with components for "several" IEDs and IIDs: 103 Our tests clearly demonstrate that a terrorist group, using publicly available information and few resources, could cause severe damage to an airplane and threaten the safety of passengers by bringing prohibited IED and IID components through security checkpoints. Given our degree of success, we are confident that our investigators would have been able to evade transportation security officers at additional airports had we decided to test them.104 Terrorists will avoid body scanners because all locations are publishedAndrew Welch, JD Candidate at the University of Denver Sturm College of Law, 2010, “Full-Body Scanners: Full Protection from Terrorist Attacks or Full-On Violation of the Constitution?” http://www.davidrasnick.com/Liberty_files/Welch%202010%20Body-Scanners.pdf Another problem with the machines' efficacy could be the fact that their locations are published. TSA has published plans to deploy 450 fullbody imagers by the end of 2010,155 with maps easily accessible on the TSA website of where these machines currently are and where they will be located.156 Terrorists can easily avoid the airports that contain this technology simply by looking at TSA's website. Only time will tell if a successful argument can be made that giving legitimate air travelers who have been subjected to the electronic full-body search a false sense of security (when in fact the terrorists are avoiding airports that use full-body scanners) in and of itself makes the search unreasonable. TSA officers are incompetent – tech doesn’t solveTobias W. Mock, Technical Editor of the Santa Clara Law Review and JD Candidate at the Santa Clara University School of Law, 1-1-2009, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of Body-Scan Searches at Domestic Airport Security Checkpoints,” http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1096&context=lawreview Finally, in addition to technological shortcomings, the TSA audits uncovered numerous procedural deficiencies, including inattentive management and a general lack of effective TSO training.233 Therefore, technology should not be considered the single and exclusive remedial measure; the TSA must take appropriate action to ensure the vigilance of screening officers prior to resorting to invasive technologies such as body-scanners. Scans can’t detect Trojan bombsAndrew Welch, JD Candidate at the University of Denver Sturm College of Law, 2010, “Full-Body Scanners: Full Protection from Terrorist Attacks or Full-On Violation of the Constitution?” http://www.davidrasnick.com/Liberty_files/Welch%202010%20Body-Scanners.pdf While the technology can see beneath clothing, the image produced by a full-body scanner does not reveal items beneath the surface of the skin.152 According to TSA's website, the full-body scanner "detects metallic and non-metallic threats, including weapons, explosives and other items that a passenger is carrying on his/her person, without physical contact 153 Some believe that the "carrying on" the person is not the same as "carrying in" the person, thereby making the new machines ineffective in detecting "Trojan" or "bosom" bombers,154 Government watchdogs confirm that scanners can’t detect many ‘threat items’ – TSA assessments are overhyped and biasedDaphyne Saunders Thomas et al, Professor in the College of Business Instruction at James Madison University, Hugh Hobson, Visiting Professor of Finance at the University of the District of Columbia, Joan C. Hubbard, Lecturer in Management at the University of North Texas, and Karen Forcht, Adjunct Assistant Professor of Computing Sciences at Elon University, 2013, “Technology in Practice: Airport Scanning Privacy Issues,” http://iacis.org/iis/2013/170_iis_2013_47-53.pdf The U.S. Government Accountability Office also raised questions about the value of the scanning technology. In an October 2009 report, the government agency said that the TSA was deploying the body scanning machines without fully assessing whether they could detect "threat items" concealed on the body. In a March 2010 follow-up report, GAO said it "remains unclear" whether the advanced scanners would have detected the explosives that police allege the Nigerian passenger tried to detonate on a jet bound for Detroit in 2009. 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