Full-body scanners at Logan Airport. (Photo: johnscotthaydon)
Come Wednesday, the public uproar over the government's ability to virtually strip-search air travelers or feel them up before flying could turn into widespread civil disobedience.
This month, a grassroots campaign has shot out of the electronic ether to contest the Transportation Security Administration's (TSA) decision to require all travelers to submit to either a full body scan or a law-enforcement style pat-down before moving into their sterile boarding areas of airports. The National Opt-Out Day's mission statement doesn't mince words. Tomorrow, November 24, the traditionally busiest travel day of the year, is the public's opportunity to rise up and register its dissent against an out-of-touch bureaucracy.
"It's the day ordinary citizens stand up for their rights, stand up for liberty, and protest the government's desire to virtually strip us naked or submit to an 'enhanced pat down' that touches people's breasts and genitals in an aggressive manner,"Â the web page declares. "You should never have to explain to your children, 'Remember that no stranger can touch or see your private area, unless it's a government employee, then it's OK.'"Â
The goal of the campaign is simple: If enough irate travelers opt out of the full-body scanners, the TSA will have to pat them down, a more time-consuming screening method. If even a fraction of these fliers protest, bottlenecks at the security checkpoint could cause costly delays and people missing flights home for the holiday.
National Opt-Out Day has also received help from another incident a weekend ago when 31-year-old John Tyner refused both the full body scan and an enhanced pat down at San Diego International Airport. After the transportation security officer explained to Tyner that during the pat down he would feel his groin, Tyner blurted out, "If you touch my junk, I'll have you arrested."Â Tyner, who recorded his interaction with TSA, posted the video online. It went viral. Within days, Congress members' offices were flooded with angry calls and emails and the head of TSA was answering questions about "peekaboo scanners"Â and government-authorized "groping" before two Senate committees.
Apart from the visceral violation many air travelers and Americans feel from the TSA's security technology and procedures, civil libertarians, privacy advocates, pilot unions, trade associations, and Congress members and their own watchdog organization have levied serious allegations against the agency's use of full-body scanners for some time now. Allegations that include the TSA violating several laws and the Bill of Rights on top of risking air travelers' health for an illusion of security that allows the well-connected to line their pockets with government money.
Rumblings of Discontent
Resistance to full-body scanners - or in TSA parlance, advanced imaging technology (AIT) - has been gaining momentum for almost two years.
In May 2009, the Electronic Privacy Information Center (EPIC) and 30 other public interest organizations petitioned Homeland Security Chief Janet Napolitano to conduct a public rulemaking session after the Department of Homeland Security (DHS), the TSA's parent agency, decided that full-body scanners would become the primary screening method at airports when available without notifying the public. Previously, full-body scanners were reserved for secondary screening if primary screening methods detected a possible threat. The DHS failed to act on the petition's request for a public hearing.
Then came the event that led to the invasion of full-body scanners occurring now. Last Christmas, 23-year-old jihadist Umar Farouk Abdulmutallab hid an explosive device in his underpants and ignited the device in an effort to destroy a Detroit-bound flight from the Netherlands. Because the bomb was composed of nonmetallic ingredients, traditional magnetometers could not detect the explosive compounds. The new threat resulted in the DHS aggressively deploying 385 full-body scanners to 68 airports nationwide in 2010, with the intent of having 1,000 machines in circulation by the end of next year.
But the DHS may have acted hastily. In March, the Government Accountability Office (GAO) called into question whether full-body scanners could have detected the underwear bomber. "While TSA officials stated that the laboratory and operational testing of the AIT included placing explosive material in different locations on the body, it remains unclear whether the AIT would have been able to detect the weapon Mr. Abdulmutallab used in his attempted attack based on the preliminary TSA information we have received," the GAO's Steve Lord, director of homeland security and justice issues, told a House subcommittee.
The GAO was also critical that the TSA had not conducted a cost-benefit analysis for the full-body scanners' deployment and maintenance. According to the watchdog's own numbers, the full-body scanners and the additional staff needed to operate the machines could cost $2.4 billion over their expected service life.
A month later, the former chief security officer of the Israel Airport Authority told Canadian lawmakers that full-body scanners were a waste of money and were not deployed at Tel Aviv's Ben Gurion International Airport. "I don't know why everybody is running to buy these expensive and useless machines,"Â Rafi Sela said. "I can overcome the body scanners with enough explosives to bring down a Boeing 747."Â
Then in May, EPIC and public interest organizations petitioned Napolitano again, this time including the DHS's chief privacy officer. Only, this time, the coalition argued the full-body scanners' deployment violated numerous federal laws and the Fourth Amendment's prohibition against unlawful search and seizure and pleaded for the DHS to cease purchasing further scanners and desist from operating those already deployed. The TSA responded, refusing to process the group's petition.
On November 1, EPIC and three other plaintiffs delivered their opening brief to a federal appeals court in Washington asking for the court to stop full-body scans until the DHS conducted a 90-day rulemaking session. According to the brief, EPIC isn't dead set against full-body scanners, but they are against the antidemocratic and unconstitutional way the TSA decided this particular technology would supplant other techniques and technologies.
"Petitioners object to Respondents' decision to make full-body scanners the primary means of screening in US airports,"Â the brief said. "That decision disregarded the Fourth Amendment, as well as federal laws that ensure agency accountability and help safeguard privacy and religious freedom."Â
Well-Connected Players Profit
As the conservative Washington Examiner's Timothy P. Carney wrote last week, full-body scanner manufacturers have some well-connected players lobbying on their behalf. L3 Communications, which makes one type of machine, active millimeter wave, hired lobbying firm Park Strategies to represent their interests. There, former Sen. Al D'Amato (R-New York) and former Appropriations staffer Kraig Siracuse work to convince lawmakers that full-body scanners are necessary for the security of air travelers. Four days after the botched Christmas Day account, the TSA announced L3 would receive a $165 million contract for its full-body scanners.
The other large, full-body scanner manufacturer, Rapiscan, which makes backscatter X-ray machines, had the biggest name lobbying for them: former Secretary of Homeland Security Michael Chertoff. Days after Abdulmutallab's failed attack, Chertoff touted full-body scanners to The New York Times and even wrote an op-ed for The Washington Post, arguing that a bill to make full-body scanners only for use during secondary screening should be defeated and decried "privacy ideologues"Â for their objections to the screening technology.
"So, under the standards set by the House bill, a terrorist not on a 'no-fly' list or a watch list mandating closer scrutiny - like Abdulmutallab - could probably carry a concealed non-metal weapon onto a plane undetected,"Â Chertoff wrote. "Congress should reject this restrictive bill and instead fund a large-scale deployment of next-generation systems."Â
Chertoff, however, never let either newspaper know that he was being paid by Rapiscan to endorse their products. According to Carney, Rapiscan also hired Susan Carr, a former senior legislative aide to Rep. David Price (D-North Carolina), chairman of the Homeland Security Subcommittee, another proponent of full-body scanners. Chertoff and Carr's efforts worked. The TSA handed Rapiscan a $173 million contract.
Not Your Typical Privacy Ideologue
What makes the recent upsurge of protest so surprising is that resistance isn't just coming from the same "privacy ideologues" that Chertoff argued against almost a year ago.
Some of the strongest reactions have come from pilot unions. The US Airline Pilots Association (USAPA) told its pilots to not submit to full-body scanners because of health concerns.
"The TSA has offered no credible specifications for the radiation emitted by these machines," wrote USAPA President Captain Mike Cleary in a statement to his fellow pilots two weeks ago. "As pilots, we are exposed to more radiation as a function of our normal duties than nearly every other category of worker in the United States."Â
While other people have protested full-body scanners for possible health risks, only one machine, Rapiscan's backscatter machine, emits radiation. The TSA consistently says backscatter machines are safe and notes independent studies performed by the Food and Drug Administration's Center for Devices and Radiological Health, the National Institute for Standards and Technology and the Johns Hopkins University Applied Physics Laboratory confirm this.
The Airline Pilots Association (ALPA) also registered its discontent with the TSA's security screening process, arguing that pilots do not present a risk and should not have to undergo the same level of screening as everyone else.
"[Pilots] are very heavily scrutinized and evaluated on a daily basis," the ALPA said in its statement. "They have been subjected to extensive FBI background checks and thousands are deputized as Federal Flight Deck Officers by the TSA who carry and are authorized to use lethal force while on duty to defend the cockpit from a terrorist threat."Â
And last Tuesday, two airline pilots sued the DHS and the TSA in a Washington federal court for violating their Fourth Amendment rights. Michael S. Roberts, a pilot with ExpressJet, and Ann Poe, a Continental pilot, are asking the judge to stop the TSA from making full-body scanners the primary screening method, as well as seeking damages. They are being represented by The Rutherford Institute, a conservative civil liberties organization.
Even the travel industry is upset over the effects full-body scanners could have on business. "You can't talk on the one hand about creating jobs in this country and getting this economy back on track and on the other hand discourage millions of Americans from flying, which is the gateway to commerce,"Â Geoff Freeman, an executive vice president of the U.S. Travel Association, told Reuters last week.
Where's the Line?
In a public hearing last week with TSA Administrator John Pistole, Sen. Mike Johanns (R-Nebraska) wondered if the public had reached its "tipping point"Â with air security.
"You know, take off your belt, take off your coat, take off your shoes, take out your liquids, on and on," Johanns said. "And now advanced imaging and, as you acknowledge, very intrusive pat-down, if you choose not to do that."Â
It's an important question. Critics continually stress that the TSA is always protecting against the last attempted attack. Richard Reid's shoe bomb results in the TSA screening travelers' shoes for explosives. The 2006 cross-Atlantic aircraft plot to bring down at least ten airliners with liquid explosives means air travelers are banned from bringing liquids in containers of three ounces or more through security. Underwear bomber Abdulmutallab means air travelers must relinquish their final vestige of dignity and choose between allowing a government employee to either sneak a peak at what their packing or actually feel the real thing.
But this behavior pattern, begs the question: What will the TSA do when a terrorist somehow ingests or inserts a bomb into his body? This isn't a Hollywood brainstorming session taking a vulgar, outlandish turn.
In August 2009, a comrade of Abdulmutallab's did just that. Twenty-three-year-old AQAP operative Abdullah Hassan Tali al-Asiri became the ultimate Trojan Horse. In an effort to get close to the head of Saudi counterterrorism, Interior Minister Prince Mohammed bin Nayef, the young jihadist pretended he had turned away from violent extremism. Little did the prince or his security detail know, al-Asiri had inserted a bomb into his rectum. When he got an audience with the prince, the device detonated, blasting al-Asiri to bits and only grazing Nayef.
If AQAP tries this attack vector in the United States, it's disconcerting to dream up how the TSA will respond to this vulnerability.
Holding the Line
In Congressional testimony last week, TSA Administrator John Pistole stood firm. He said air travelers will either submit to a full body scan or an enhanced pat down or they will not fly. Pistole pleaded for public cooperation, telling senators that the TSA and other federal agencies and national laboratories are working diligently to deploy next-generation screening technologies to eliminate fliers' privacy concerns.
Tomorrow, he will find out whether the flying public is willing to sacrifice some security for the sake of liberty.