3184530981_56e12c45d4Now that Thanksgiving has passed and with it (to some extent) the controversy over the Transportation Security Administration’s (TSA) full-body scan/pat-down security procedures at airports, a similar controversy looks to be heating up in a different venue. Two courthouses in Colorado–the Douglas County Courthouse in Castle Rock, CO and the El Paso County Judicial Center in Colorado Springs, CO–have begun using radiation-based “Advanced Imaging Technology” full-body scanners to screen entering patrons. Like their TSA counterparts, courthouse security personnel witness the security scans through a monitor in an adjacent room that enables them to view all objects on an individual’s person, down to his or her skin.

The full-body scan is a security measure implemented in response to Umar Farouk Abdulmutallab’s (a.k.a. “the underwear bomber”) attempt to detonate plastic explosives hidden in his underwear on a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day, 2009. If passengers do not wish to undergo the full-body scan, they can opt for a pat-down procedure, which goes farther than previous airport security pat-downs in that the new procedure enables TSA personnel to perform searches with open hands and fingers (instead of just the back of the hand) and basically gives them free reign to search the entire surface area of one’s body, prompting the now famous catch-phrase from patted-down passenger John Tyner: “If you touch my junk, I’m going to have you arrested.”

Mr. Tyner’s experience exposed an apparent false choice offered to passengers who refuse to undergo the full-body scan or the enhanced pat-down procedure. While one might think that by refusing to undergo the new security measures one could simply decline to fly and go home for the day, as Mr. Tyner found out upon his escort from the security area by a TSA agent, if an individual refuses to submit to both procedures he or she can be faced with up to an $11,000 fine.

While the legality of the new security procedures has yet to be questioned in the courthouses context, the Electronic Privacy Information Center (EPIC), a Washington, DC-based civil liberties watchdog group, questioned their scope in the airport security context with the filing of its opening brief in a lawsuit against Secretary of Homeland Security Janet Napalitano last month in the United States Court of Appeals for the District of Columbia Circuit. The brief alleges, inter alia, violations of the Privacy Act and the Fourth Amendment’s protection against unreasonable searches.

The legal standard used to gauge the permissible scope of airport security checkpoints was articulated in the Ninth Circuit’s 1973 decision United States v. Davis. In that case, the court characterized screenings at airport security checkpoints as “administrative searches,” a characterization that enables TSA to administer security procedures as it sees fit so long as they are “no more intrusive or intensive than necessary in light of current technology, to detect weapons or explosives, [and are] confined in good faith to that purpose.” Since this standard was articulated, the United States has developed arguably the most demanding airport security apparatus in the world. Given this backdrop, the EPIC appear to be facing an uphill battle, at least on Fourth Amendment grounds.

4469658429_cbb06f4505_mIn the courthouse security screening context, privacy concerns were exposed when news came out that a security scan machine at an Orlando Florida courthouse had stored over 35,000 images of individuals who had passed through the body-scan. Though TSA officials have been assuring the public for months that images would not be stored by airport scanners, the EPIC is wary of these assurances since the scanners are pre-programmed with the ability to store images. Under the “minimally intrusive. . .and effective” test articulated by the Third Circuit, the EPIC appears to have a strong case on privacy grounds. Scanners currently in use in the Netherlands invade passenger privacy in less intrusive means than their US counterparts by projecting areas of a passenger’s body suspected of concealing contraband onto a monitor displaying a gender neutral blob instead of an image of a naked body. The Dutch scanners, which utilize ProVision ATD technology, also possess the added health benefit of emitting radio waves at far lower frequencies than US scanners utilizing “backscatter” technology.

Few would dispute the unique security threats airports face on a daily basis. Indeed, the full-body scan and enhanced pat-down procedures were designed to thwart the new challenges posed by terrorists seeking to smuggle liquid explosives and conceal explosives in their shoes and underwear. With that said, do these procedures really need to be implemented in courthouses? As University of Denver Law professor Sam Kamin points out, “what we are still worried about at a courthouse is angry divorce litigants with a gun. . .metal detectors are pretty good at that.”

Ian Quin

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