Privacy Organization Files Lawsuit Over Airport Naked Body Scanners
Nov 23, 2010
By Ren LaForme, guest columnist for ‘In Good Practice’ – November 23, 2010
The Transportation Safety Administration is feeling some turbulence over a new technology it has installed in airports across the country.
Websites like optoutday.com have sprung up to encourage people to opt out of receiving body scans that peer through clothing, and the Electronic Privacy Information Center has filed a lawsuit against the federal government.
The new Advanced Imaging Technology, or AIT, allows airport security agents to see through clothing in order to search for explosives or weapons. Fliers enter a narrow scanning area and put their hands above their heads while the machine snaps images. The photos are sent to a closed off booth where a TSA official reviews them without ever seeing the actual people who go through the machine.
The TSA has promised that the images are deleted as soon as the person has been cleared to enter, but a leaked batch of 100 images taken in a Florida courthouse with a similar machine have raised concerns that the government may not be telling the truth . U.S. Marshalls there saved over 35,000 images of people entering and leaving the courthouse.
Those who choose to opt out of using the machine are subjected to an “enhanced” pat down, which includes open-hand touching of all areas of the body, including the genital area and chest . Some groups have likened the pat downs to “sexual harassment” and “groping” , and several DA’s have decided to allow fliers to file sexual harassment suits against TSA agents .
On Nov. 13, a man named John Tyner decided to opt out of the body scanner at San Diego International Airport and told a TSA agent, “If you touch my junk, I’ll have you arrested” . Tyner then argued with airport personnel and said that he was going to leave the airport instead of boarding his flight. A TSA official warned Tyner that under rules enacted in August 2009, he could be fined $11,000 for leaving the airport after refusing to be scanned or patted down. He left the airport and blogged about the experience, but so far has not been fined .
Several other high-profile incidents have sprung up since then. A 61-year-old bladder cancer survivor named Thomas Sawyer said he was humiliated when TSA officials broke the seal on his urostomy bag, getting urine all over his clothes. The man accepted a TSA apology but told CNN, “This was extremely embarrassing and it didn’t have to happen. With educated TSA workers, it wouldn’t have happened.” 
In another case, Cathy Bossy, a flight attendant, was forced to remove her prosthetic breast when TSA officials said that it felt “unusual” The screener made her show the prosthesis and then remove it to continue the screening. TSA rules state that agents are allowed to touch and remove prosthetic body parts if they feel it is necessary.
The Electronic Privacy Information Center has responding to the new procedures with a lawsuit. They say that AIT and the new pat down procedures violate U.S. law the under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act and the Fourth Amendment .
EPIC also raises concerns over the safety of the scanners. The TSA began implementing Advanced Imaging Technology in 2007, greatly expanding their use in March of 2010 after receiving funds from the American Recovery and Reinvestment Act . EPIC argues that there has not been any long-term research to study the technology for possible negative health effects.
The Food and Drug Administration insists that the backscatter X-ray technology in the machine is safe, even though it uses a type of ionizing radiation that damages chemical bonds . Researchers from the University at California, San Francisco sent a letter to the head of the TSA in May with concerns about the devices.
The fate of Advanced Imaging Technology might not be in the hands of the courts. Several states, including New Jersey  and New York , have considered banning the devices. So far, neither has made a decision, but a large group of airport passengers have. Thousands of people on Facebook have declared their intention to opt out of being scanned .
Whether enough people will opt out to make the TSA rethink its use of the technology remains to be seen.
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