Essay: Privacy Expectations in Airport Screenings

By Meghan Heesch

As millions prepare to board flights for Thanksgiving holiday destinations, the TSA’s newest attempt to use technology to balance liberty and security needs has travelers extremely concerned about privacy rights.  In a proactive approach to ensure safety, travelers at major airports have full images scanned of their bodies, producing an image described by the Associated Press on NPR as “a virtually naked image.”  The TSA’s justifications focus entirely on the national security aspect, with TSA head John Pistole claiming that “if we are to detect terrorists, who have again proven innovative and creative in their design and implementation of bombs that are going to blow up airplanes and kill people, then we have to do something that prevents that.”

As the national security concern is heightened after last year’s “underwear bomber” caught the TSA off-guard, does this justify an invasion of privacy to parallel the threat du jour? Travelers already remove their shoes and have bottle of water confiscated before going through security as a result of reactionary approaches. The body scanner technology indeed is an extremely effective proactive measure, but at what cost? To save face, and respond effectively to travelers, the privacy concerns must be addressed concretely and openly to the public, without deferring automatically to the national security justification.

A reasonable expectation of privacy at an airport in a post-9/11 world will clearly include some inconvenience. But given the invasiveness for the privacy-concerned citizen between a thorough pat-down and a scan of one’s naked body, a Hobson’s choice between two undesirable outcomes may seem unreasonable. A lack of official TSA policies and training procedures has only heightened the concern for privacy rights advocates, like the ACLU (see  It is certain that the reasonableness of the expectation for security checks at the airport are in a security sensitive world necessarily must be ensure that scans are destroyed, and not released to the public, as has recently occurred at the Orlando, FL federal courthouse.

Perhaps a potential solution to address both the privacy and the national security concerns in air travel should lie in the technology itself. According to NPR, some European airports have scanners that “produce images in which the traveler is represented as a stick figure, with suspicious objects highlighted.” If the US government and TSA are not merely paying lip service to the privacy concerns, they should seriously invest resources to make this or other alternative technologies a reality, to ensure both safety and privacy for all air travelers.

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The Harvard Civil Rights-Civil Liberties Law Review (CR-CL) is the nation’s leading progressive law journal. Founded in 1966 as an instrument to advance personal freedoms and human dignities, CR-CL seeks to catalyze progressive thought and dialogue through publishing innovative legal scholarship and from various perspectives and in diverse fields of study.

Latest comments
  • Wouldn’t a first step be to have only women view scans of women and men view scans of men – unless the passenger willingly accepts viewing by the opposite sex? If the passenger could also see the face of the screener and know whether they were being professional rather than mocking, that would help too. In fact, I would also want to see on a small screen what the screener would see on their screen and be able to push a button to transmit the image. That would give me some feeling of control. Just being viewed naked by some all-powerful anonymous stranger is demeaning in the extreme and reminiscent of being stripped at a Nazi concentration camp – strictly for health reasons, of course. No one wants lice to spread.

  • Apparently the Government owns the patent on software to distort the images and blunt the privacy concerns, and simply chooses not to use it. Both Obama and Ron Paul are trying to find ways to fix this, so maybe it’s the first opportunity for bi-partisanship we’ve seen in a while.

  • They really have to show that they have everything under control. At least they want the people to think that. What actually happens is that people are being fed with fear of terrorist attacks (not to mention the shame of these scanners). The prize we are paying is way to high. Plus: can they guarantee our safety? Nobody can.

  • EPIC has undertaken extensive litigation on these issues. There are three interrelated cases:

    EPIC v. DHS (D.D.C. 2009)
    (The case which revealed that body scanners
    were designed to store and record images)

    EPIC v. DOJ (D.D.C. 2009) (USMS)
    (The case which revealed that the US
    Marshall Service saved images)

    EPIC v. DHS (DC Cir. 2010)
    (The case to suspend the body scanner program)

    It is the last case that EPIC sets out in detail the Fourth Amendment problem, as well as the violations of the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the DHS organic act (obligations of the Chief Privacy Officer).

    Marc Rotenberg