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Are TSA pat-downs and full-body scans unconstitutional?

The TSA says the pat-downs and full body scans are necessary to keep airliners safe. But critics ask if such intimate searches violate the Fourth Amendment.

By Elizabeth FullerCorrespondent / November 17, 2010

In this Sept. 1 photo, Transportation Security Administration employee Anthony Brock (l.) demonstrates a new full-body scanner at San Diego's Lindbergh Field, with TSA employee Andres Lozano in San Diego.

Eduardo Contreras/San Diego Union Tribune/AP

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As the debate about the Transportation Security Administration’s screening procedures pings across the Internet, a growing chorus of critics is asserting that electronic imaging scans and “enhanced pat-downs” both represent an unconstitutional violation of the Fourth Amendment, which protects against unreasonable searches.

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“Enough is enough. I should not have to submit to a digital strip search or being groped by a glorified security guard," writes commenter vrwc1 in a typical post on cnet.com. "This is the largest violation of personal privacy we've ever seen.”

The choice to get on an airplane, the argument goes, is not probable cause for such invasive searches, nor does buying a ticket constitute consent to be subjected to a “virtual strip search” and “groping,” as critics call the two searches.

For the courts, however, it is a matter of balancing personal privacy rights against public safety.

“Are the conditions that you’re consenting to so draconian and so unreasonable that there’s a Fourth Amendment problem?” asks William Schroeder, a professor of law at Southern Illinois University at Carbondale. “I don’t think that argument is going to carry the day, given that people have hidden bombs on their bodies in ways that cannot be found through less invasive searches.”

'You don't have to fly'

At the heart of the issue is consent, says Professor Schroeder. Have people consented to this search, simply by buying a ticket? "I certainly understand why people are not altogether pleased about it,” says Schroeder, but “you’ve consented. You don’t have to fly – that’s your choice.”

Others, however, suggest that the searches overreach. In order to pass the Supreme Court’s test for constitutionality, searches must balance a “reasonable” amount of privacy invasion against the likelihood of finding evidence of a crime.

RELATED: Number of full-body scanners at US airports to triple in 2010

In other words, it comes down to a cost-benefit analysis.

The "costs" of the scans have been reported from every corner of the Internet. Stories are emerging of TSA officers commenting inappropriately on scans, and of passengers reporting their pat-downs as “sexual assault.”

What is not yet clear are the benefits.

John Pistole, head of the TSA, told a Senate committee Tuesday that pat-down techniques are so thorough that they would have detected the explosives concealed in the underwear of Umar Farouk Abdulmutallab on Christmas Day last year.

“It’s more invasive than I’m used to,” acknowledged Mr. Pistole, when asked by Sen. Byron Dorgan (D) of North Dakota if he had received an enhanced pat-down himself, during a Wednesday morning hearing of the Senate Commerce, Science, Transportation Committee.

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