Airport Body Scanners Evade Privacy Claims

(CN) - Now that airport body scanners have replaced revealing images of passengers with generic body outlines, the 1st Circuit rejected privacy claims as moot.

Jeffrey Redfern and Anant Pradhan had sued against Homeland Security Secretary Janet Napolitano and Transportation Security Administration (TSA) head John Pistole in 2010 over Advanced Imaging Technology (AIT) body scanners and enhanced pat-downs at U.S. airports as the primary techniques of screening passengers.

They claimed, pro se, that the use of these screening methods violated their Fourth Amendment rights against unreasonable searches and seizures, as well as their right to interstate travel and privacy.

U.S. District Judge Denise Casper dismissed the complaint, however, after finding that challenges to standard operating procedures are reviewable only by the federal courts of appeals.

As Redfern and Pradhan appealed to the 1st Circuit, the Transportation Security Administration finally dumped the scanners after slamming AIT developers at Rapiscan for not improving the technology under a congressionally mandated deadline to produce less explicit images.

The government announced that new scanners would display a generic human figure for all passengers as of May 16, 2013.

A three-judge panel of the Boston-based federal appeals court concluded Thursday that the development has mooted the case.

The new software, Automatic Target Recognition (ATR), has been installed on all millimeter-wave scanners currently being used to screen passengers.

In their bid to overcome mootness, Redfern and Pradhan had argued that the invasive searches by the government are "capable of repetition, yet evading review."

Though the government has guaranteed to remove all of the backscatter scanners from screening checkpoints, Redfern and Pradhan claimed that it nevertheless intends to redeploy the scanners to "other mission priorities within the government."

Therefore, it is "reasonable to expect that we could at some point in the future be scanned again," because "as attorneys and residents of San Francisco and Washington, D.C., we are no strangers to mass transit and government buildings," the plaintiffs claimed.

These claims failed, however, to persuade the appeals court.

"The truth of the matter is that the government has not revealed where it plans to redeploy the decommissioned backscatter machines, or whether it intends to reuse them on the traveling public at all," Judge Juan Torruella wrote for the panel. "There are a myriad of possibilities and it may very well be that appellants will never be subjected to the backscatter machines again."

"As appellants have been unable to establish the applicability of the 'capable of repetition' exception, it is clear to us that no live case or controversy remains and that their claims against the use of the backscatter machines must be dismissed as moot," Torruella added.

Congress created the TSA in the aftermath of the Sept. 11, 2001, terrorist attacks, tasking the agency with oversight of civil aviation security, including the screening of all passengers going through U.S. airports.

The agency issued standard operating procedures for its personnel, including the Screening Checkpoint SOP, which specifies procedures that govern screening at airport checkpoints, as part of its compliance with this mandate.

Enhanced pat downs and the use of two types of AIT scanners - millimeter-wave scanners and backscatter x-ray scanners - came about through the revised Screening Checkpoint SOP that the TSA issued on Sept. 17, 2010.

That procedure authorized, for the first time, the use of AIT scanners for primary screening. The scanners were previously used to provide secondary screening for selected passengers.

It also provided the choice of enhanced pat-downs for any passenger who declined to submit to AIT scan.

Redfern and Pradhan complained that the intrusive pat-downs consisted of "the touching of the genitals, buttocks, and ... breasts of the individual being screened." The enhanced pat-down, "if done non-consensually, would amount to a sexual assault in most jurisdictions," they claimed.

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