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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.

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After acknowledging his own personal discomfort with the search, Pistole stood by the procedure as a screening technique. “The bottom line is, we need to provide for the best possible security,” he said.

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Do full-body scanners work?

But the value of the full-body scans, which are used 50 times more often than the pat-downs, are less certain.

“It remains unclear whether the AIT [scanners] would have been able to detect the weapon Mr. Abdulmutallab used in his attempted attack,” says a March report from the Government Accountability Office (GAO).

Italian security officials stopped using the scanners in September. "We didn't get good results from body scanners during testing,” said Vito Riggio, the president of Italy’s aviation authority, describing the scans as slow and ineffective.

British scientists found that the scanners picked up shrapnel and heavy wax and metal, but missed plastic, chemicals and liquids, reported UK newspaper The Independent in January.

“Some of these technological responses to terrorism really start to seem like placebos,” says Susan Herman, President of the American Civil Liberties Union (ACLU) and law professor at Brooklyn Law School. “To the extent that people understand what the benefits are, and the invasion of privacies are, they can make more informed decisions about giving up their privacy for machines that make them feel better, but don’t do the job of preventing any terrorist device from getting on an airplane.”

Professor Herman says the scanners present a significant threat to privacy.

“This technology can go right up a woman’s skirt," and it can reveal medical conditions via the presence of an adult diaper, a colostomy bag, or other personal medical equipment – information that individuals have the right to keep private, she adds.

The TSA has relented in the face of some complaints. It announced Tuesday that it will no longer screen children under 12.

Chris Calabrese, a privacy lobbyist for the ACLU, says “the balance seems to be missing here.”

“Until it’s restored, I think TSA is going to continue to hear these concerns," he adds. "This is pretty far outside the norm of what people expect when they travel, even in these days. We’ve certainly seen the normal shift over the past decade, but there’s still a line, and both these procedures are on the wrong side of that line.”

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