Airplanes / Aviation, Constitutional Law, D.C. Circuit, Privacy

Can You Fly the Friendly Skies Without Being Seen Naked?

TSA's T&A?

Taking off your clothes and getting fondled is usually fun… except when it happens at the airport. Going through security before flights has gotten increasingly humiliating over the years. Watching people prepare themselves for inspection by stripping off their shoes, belts, jackets, and sweaters is like the least sexy and most frustrating strip tease ever.

The TSA’s new whole-body imaging machines make the stripping much more efficient. There are two types of scanners — using either millimeter wave or backscatter technology — which show a person without their clothes on, to reveal a glock, bomb-making materials, or smaller, less intimidating equipment. There are now over 300 of the machines in over 60 airports.

The scanners have been controversial for both privacy and health reasons. Some people aren’t comfortable with a random TSA worker seeing them sans clothing, despite promised privacy protections, such as faces being blurred and the TSA officer who views the image not seeing you in person. And some frequent flyers fear the radiation risks that come with being X-rayed on a regular basis.

A privacy civil rights group, the Electronic Privacy Information Center, is hoping to stay the scans with a lawsuit against the Department of Homeland Security…

EPIC filed an emergency stay earlier this year trying to immediately halt the use of the scanners. The DC Appeals Court wouldn’t grant that stay but did let the lawsuit proceed. EPIC filed its brief in the case last week. They allege that the machines constitute an unreasonable search and that the Department of Homeland Security, “in rolling out the devices, violated a host of bureaucratic policies requiring public review, including the Administrative Procedures Act,” reports Wired.

The group also claims the scanners violate the Video Voyeurism Prevention Act, which I focused on over at Forbes.

One of the interesting claims in the current brief that was not included in EPIC’s original request for a stay is the allegation of a violation of the Video Voyeurism Prevention Act. That would be the law passed by Congress in 2004 that is used, in part, to fight upskirt filming. The Act [PDF] prohibits the filming of private parts — it makes an exception for cleavage — when individuals have a reasonable expectation of privacy, even if they are in a public place.

The law specifies that it applies in “circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.” So if people know that their private areas are visible, does the law apply? If there are representational avatars instead of real naked people — a software fix devised by scanner makers L-3 Communications Holdings Inc. and OSI Systems Inc. — does it apply?

The government is expected to file a reply brief in the coming month. In the meantime, if you are at an airport using the scanners and you’re discomfited by them, remember that you always have the right to eschew the whole-body imaging for a full-body patdown.

Group Demands Immediate Halt of Full-Body Airport Scanners [Threat Level/Wired]
Should the Law that Protects Against Upskirt Filming Protect Against TSA Body Scanners? [Not-So Private Parts/ Forbes]

Kash is an editor emeritus at Above the Law. She’s now at Forbes writing about privacy, and the lack thereof, in the digital age.

For disclosure purposes: She emceed EPIC’s Privacy Awards Dinner earlier this year and often harasses president Marc Rotenberg with privacy questions.

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