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Why the TSA pat-downs and body scans are unconstitutional

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Jeffrey Rosen
Washington Post
Nov 27, 2010

The protest on the Wednesday before Thanksgiving was called National Opt-Out Day, and its organizers urged air travelers to refuse the Transportation Security Administration’s full-body scanning machines.

But many appeared to have opted out of opting out. The TSA reported that few of the 2 million people flying Wednesday chose pat-downs over the scanners, with few resulting delays.

There have been high-profile acts of civil disobedience in response to the two controversial procedures recently deployed by the TSA for primary screening – the body-scanning machines and the intrusive full-body pat-downs – including software programmer John Tyner’s unforgettable warning to a TSA official: “If you touch my junk, I’ll have you arrested.” But the public seems less opposed to the scanners than civil libertarians had hoped. In a recent Washington Post-ABC News poll, only 32 percent of respondents said they objected to the full-body scans, although 50 percent were opposed to the pat-downs offered as an alternative.

That means opponents of the new measures will have to shift their efforts from the airports to the courts. One advocacy group, the Electronic Privacy Information Center, has already filed a lawsuit, calling the body scanners unconstitutional. Could this challenge succeed?

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This article was posted: Saturday, November 27, 2010 at 5:18 am





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