Are the New TSA Airport Scans and Pat-Downs Unconstitutional?

Orin’s colleague Jeffrey Rosen argues in today’s Washington Post there is a “strong argument” that the Transportation Security Administration’s use of full-body-image scanning devices and more thorough pat-downs are unreasonable searches and seizures prohibited by the Fourth Amendment.

Although the Supreme Court hasn’t evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that “a particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.’ ”

In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both “minimally intrusive” and “effective” – in other words, they must be “well-tailored to protect personal privacy,” and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests. . . .

U.S. courts have held that “routine” searches of all travelers can be conducted at airports as long as they don’t threaten serious invasions of privacy. By contrast, “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.

Would the current Supreme Court strike down the TSA’s new security measures as unconstitutional?  Rosen thinks it should, but doesn’t argue that it would.

UPDATE: A reader points me to this new article by a University of Mississippi law student in the Richmond Journal of Law and Technology likewise concluding that the use of full-body-imaging scans as a mandatory part of airport screening presents serious constitutional problems under current precedent.