Although the full-body scanning devices
have been ruled to not violate the unreasonable search and seizure clause of the Fourth Amendment of the United States Constitution as to adults who voluntarily seek to travel by air, the unanimous court also ruled that TSA violated federal law in implementing the scanning devices without providing a public hearing for comments prior to implementing the change.
Further interesting, the Court refused to address the religious violations argument for lack of a proper party, and no party to the suit was a minor. EPIC petitioned the Court for rehearing, which was denied on September 12, 2011; however, the Court awarded EPIC attorneys over $21,000 in attorneys fees for bringing the open government suit which ultimately released documents to the American public previously denied by TSA.
Ongoing issues include mobile scanners (for use on traveling or assembling public) and alleged high cancer risks, as well as violations of privacy regarding searches via an invasive "pat-down" or, in actuality, touching which would easily be considered sexual assault in a non-governmental situation.
It is unfortunate that our airports, and likely all public transportation facilities and public buildings, have been federalized under "administrative search" doctrine not generally triggering standard Constitutional protections. Therefore, under current law a likely violent felon has more substantive and procedural due process rights than the average American who enters the gates of an airport or other facility under the domain of TSA.
The counter-argument that no one is required to submit to the naked screening or pat-downs is illogical. The law does not limit the finding solely to airports, but permits TSA authority as to all public transportation pursuant to regulation. Furthermore, it is improper to assume that citizens have no right to travel inclusive of public transportation, public roads and airways, or modern convenience, except they consent to invasive private part searches or naked scanning.
Americans must not have to exchange their freedom of travel, assembly, religion and other liberty, for hermitage or house arrest.
Georgetown University Law Center professor Marc Rotenberg and other lawyers with the public advocacy group
EPIC filed suit regarding this matter and related issues. Read their press reports and FOIA document releases
here.
© 2011. Daniel L. Cox.* The Cox Law Center, LLC, Francis Scott Key Historic Law Office, 104 N. Court St., Frederick, Maryland 21701. All rights reserved. http://www.coxlawcenter.com/
*Daniel Cox is licensed to practice law in the State of Maryland by the Maryland Court of Appeals. This article is for educational and informational purposes only, to advance the interests of justice. Nothing in this article should replace competent legal advice from a licensed attorney and this article should not be relied upon as legal advice. Reading this article does not create any attorney-client relationship. For legal advice, please contact a licensed attorney.