Challenge to Airport Body Scans Dismissed

     ATLANTA (CN) – Claims that the government has overstated the risk of air terrorism “border on the absurd,” the 11th Circuit ruled, dismissing a challenge to full body scans at airports.
     In response to threats from enhanced weapons and explosives, the Transportation Security Administration implemented new screening procedures at U.S. airport checkpoints in late 2010. The procedures include advanced imaging technology scanners capable of detecting both metallic and nonmetallic objects, and enhanced pat downs for passengers who refuse to be scanned or who set off metal detectors during the screening.
     Though initially scanners displayed passengers’ body contour, without storing the images, they have since been upgraded to use generic body contours instead of passenger-specific images.
     To close security gaps in airport screenings, the agency added enhanced pat downs, in which an officer of the same gender as the passenger checks most areas of the body for hidden explosives, weapons and other dangerous objects.
     Jonathan Corbett claimed in a November 2010 federal lawsuit that the TSA procedures violated the Fourth Amendment’s prohibition against unreasonable searches. Corbett sought an injunction against the “nude body scanners” and pat downs, arguing that the agency could use less intrusive screening measures, such as bomb-sniffing dogs and explosive trace detectors.
     The district court in Miami dismissed Corbett’s lawsuit, noting that only a federal court of appeals had jurisdiction to hear the claims.
     Two years after filing the federal lawsuit, Corbett took his challenge to the 11th Circuit.
     The court of appeals agreed Friday that it had jurisdiction over the claims, but dismissed Corbett’s petition as untimely. Corbett’s two-year delay in filing the lawsuit is not justified because both the agency and the Florida court directed him to the proper forum in 2010, when the procedures were first implemented, according to the Sept. 19 majority opinion.
     Corbett’s “quixotic pursuit of the wrong remedies” in district court does not provide reasonable grounds for delay, the opinion states.
     Even if the court were to consider the claims, the challenged airport screenings are reasonable administrative searches under the Fourth Amendment, the majority concluded.
     “The scanners at airport checkpoints are a reasonable administrative search because the governmental interest in preventing terrorism outweighs the degree of intrusion on Corbett’s privacy and the scanners advance that public interest,” U.S. Circuit Judge William Pryor wrote for the majority.
     Given recent aviation terrorism plots involving nonmetallic explosives, Corbett’s suggestion that the agency has overstated the threat that terrorism poses to commercial airplanes “borders on the absurd,” the judge noted.
     Contrary to Corbett’s argument, airport scanners effectively reduce the risk of air terrorism. Furthermore, it is not up to the court to decide whether other techniques could better advance the government’s interest in dealing with a serious public threat such as terrorism, according to the ruling.
     Since the scanners now create only a generic outline of passengers, the invasion of privacy is diminished, the opinion states. As for pat downs, which are a backup screening method, they can occur in a private location, with a witness present, and are usually conducted by an officer of the same gender as the passenger.
     “The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett,” the opinion adds. “Airport screening is a permissible administrative search; security officers search all passengers, abuse is unlikely because of its public nature, and passengers elect to travel by air knowing that they must undergo a search. … The ‘jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane’ outweighs the slight intrusion of a generic body scan or, as a secondary measure, a pat-down.” (Citation omitted).
     The court agreed to seal sensitive security information and copyrighted materials the agency provided during the proceedings. Corbett must continue to comply with a non-disclosure agreement he signed earlier even though a third party made some of the sensitive information available to the public, according to the ruling.
     In a 4-page dissent, U.S. Circuit Judge Beverly Martin said Corbett’s pursuit of remedies in district court was not “quixotic” but “methodical and diligent,” and his petition should not have been dismissed as untimely.

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