WASHINGTON (Reuters) – A U.S. appeals court on Friday upheld the use of full-body scanners to screen air travelers, but said the Transportation Security Administration should have sought public comment before deploying them.
The U.S. Court of Appeals for the District of Columbia Circuit ruled that the machines, known as Advanced Imaging Technology (AIT), were not an unconstitutional search and declined to halt their use despite TSA’s failure to follow proper procedure.
Privacy advocates, who have strongly opposed the use of the machines, had argued their use constituted an illegal search under the U.S. Constitution’s Fourth Amendment. They also said TSA failed to provide public notice that it was deploying them and to seek public comment.
“Any passenger may opt-out of AIT screening in favor of a pat-down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive,” the three-judge panel ruled.
The court agreed that the deployment of the scanners, which allow screeners to see under a traveler’s clothes in a bid to detect hidden explosives, was significant enough that the TSA should have sought public input.
“It is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not,” Judge Douglas Ginsburg wrote for the panel, adding that the agency should have provided notice and sought comment.
The court sent the matter back to the TSA for action.
The TSA accelerated deploying full-body scanners after a Nigerian man allegedly boarded a flight from Amsterdam to Detroit in December 2009 and tried to detonate a bomb hidden in his underwear. It failed to explode fully.
TSA has also begun testing software in which a generic outline of a person is shown rather than the revealing image.
TSA spokesman Greg Soule said they were reviewing the ruling and that the agency already seeks public input.
“This is the best technology currently available to detect nonmetallic improvised explosive devices hidden on a passenger, and is an important part of TSA’s multilayered security efforts,” he said.
Some air travelers have expressed anger at the new machines, saying they were too invasive and that the alternative physical pat-downs were as well.
“Many Americans object to the airport body scanner program,” said Marc Rotenberg, president of the Electronic Privacy Information Center, which had challenged their use. “Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law.”
(Reporting by Jeremy Pelofsky; Editing by Paul Simao)
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