Body Scanners and the 4th Amendment

The United States has a new strategy to win the war on terror, to win the hearts and minds of the people of the tribal areas in Pakistan. But this strategy hit a little bump this past week, in an internationally embarrassing incident at Washington National Airport involving body scanners. These contraptions are prompting a debate over the Fourth Amendment of the United States constitution, the right that protects against unreasonable search and seizures.

Six Pakistani lawmakers from the tribal areas were invited to the United States by the State department. While boarding a flight from the District of Columbia to New Orleans, two members of the delegation were asked to go through extra screening, which included the body scanners. These scanners take a naked image of the person inside the toilet stall sized booths and blur the face. The naked image is used to detect explosives hidden in layers of clothing, such in the case of the "underwear bomber" in December 2009. Two of the Pakistani lawmakers were selected for extra screening and refused to be screened in such a manner, and all six boarded a flight back home.

These lawmakers are seen as heroes back in Pakistan. For most Pakistanis it is an insult to be included on the list of fourteen countries selected for additional security, when publicly the United States calls Pakistan an ally. This incident not only marks lack of coordination between governmental agencies but highlights the right to privacy granted in the U.S. constitution.

Since these Pakistani lawmakers were on US soil they still are protected under the US constitution. The Supreme Court, in Yick Wo v. Hopkins, (1886) asserted the principle that the Constitution protects all persons, even foreigners, within U.S. jurisdiction. The fourth amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." However, there is an exception granted to the Customs and Border Protection division of the government. The CBP is allowed to search travelers and their belongings without probable cause. But the customs officer has to have reasonable suspicion to believe the traveler is carrying something dangerous.

Now this raises the question of what is reasonable suspicion. According to the American Civil Liberties Union, the standard of reasonable suspicion needs to be used in the case of body scanners as well, but it hasn't been tested in the courts yet, said Jay Stanley from the Technology and Liberties program of the ACLU. "No American or any person is ever as powerless as when at a border in the US," he said in an interview for this article.

The ACLU is one of the organizations against body scanners in this polarized debate. "It is a bad deal, we don't know how effectively they work, they are expensive and are needed everywhere. We need to get the basics of security down first, such as checking incoming cargo and checked luggage," said Stanley. Research in Brittan has shown these machines cannot detect chemicals such as liquids or gels, thus making them less effective.

The right to privacy for an individual is a right granted to everyone in the constitution. It is unfortunate that certain rights have been taken away by the previous administration citing the state of war the country is in. But as Justice Sandra Day O'Connor said in her majority opinion for Hamdi v. Rumsfeld (2004), "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Even with such arguments against privacy infringement the U.S. government continues to order and install more body scanners at airports across the nation. Nine more airports are joining the 19 other airports that already use this technology.