The Transportation Security Administration’s new screening and pat-down procedure at airports may be unconstitutional, says George Washington University law Prof. Jeffrey Rosen. Although the Supreme Court hasn’t evaluated airport screening technology, Rosen writes in the Washington Post, 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.”
Writing in 2006 for the U.S. Court of Appeals for the 3rd Circuit, 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 the tests of Alito, now on the Supreme Court, says Rosen.