BY JENNY SEILER
Two Harvard Law students have filed a federal lawsuit against the Transportation Security Administration that claims the use of “nude body scanners” and new enhanced pat-down techniques at airport security checkpoints are unconstitutional.
Jeffrey Redfern ’12 and Anant Pradhan ’12 filed the lawsuit Monday in the District Court of Massachusetts. The complaint names Secretary of Homeland Security Janet Napolitano and TSA Administrator John Pistole as defendants. Beginning in March 2010, the TSA deployed 450 full-body scanners in airports throughout the country. Boston’s Logan International Airport has 17 of the full-body scanners at issue in the lawsuit, according to the TSA’s website.
The lawsuit claims the mandatory screening techniques violate the students’ Fourth Amendment right against unreasonable search and seizure. The suit seeks a permanent injunction against the use of either screening method without reasonable suspicion or probable cause and a declaratory judgment stating that mandatory screening using these techniques is unconstitutional where probable cause or reasonable suspicion do not exist.
Redfern and Pradhan have also asked for an injunction that would prevent the TSA from storing any images taken using the full-body scanners except as needed to prosecute suspected terrorists.
Redfern said he became interested in filing a lawsuit in early November after he first heard about the enhanced pat-downs.
“I was not happy about it, and I pretty quickly started looking into some of the law and tried to see if there was anything there,” Redfern said. “Obviously, it’s one thing to feel like something is frustrating and an imposition, and it’s another to feel like you actually have a claim.”
In November, Redfern and Pradhan flew out of Logan airport. Both refused to go through the full-body scanners. Instead they submitted to pat-downs by TSA agents.
“We were protecting justiciability grounds so we wouldn’t get kicked on standing or ripeness or mootness,” Pradhan said.
Pradhan said a TSA agent put his fingers inside the waistband of Pradhan’s pants, felt his groin, and lifted his buttocks.
“They run their hand all the way up [to a person’s groin] , and they don’t necessarily stop,” he said. “They’ll go all the way up until – well, they go all the way up.”
A TSA spokesperson said the agency does not comment on pending litigation.
Both the scanners and the pat-down techniques have drawn wide media attention and prompted privacy concerns from air travelers, some refusing to submit to either method of screening. Earlier in November, John Tyner , a 31-year-old software engineer, was turned away from his flight at the San Diego International Airport after he declined to go through the full-body scanner and then refused a pat-down, telling the TSA agents, “If you touch my junk, I’ll have you arrested.” Tyner filmed the incident and posted it on his blog.
Coverage of the incident also drew attention to an online movement, which declared Wednesday, Nov. 24 “National Opt-Out Day” and urged passengers to opt out of the full-body scanners on the day before Thanksgiving, one of the busiest travel days of the year.
Although TSA officials had voiced concerns that the movement would slow security screenings, no major delays were reported. At Logan airport, about 56,000 passengers were screened, and 300 passengers declined to use the full-body scanners. Those 300 were screened using the enhanced pat-down technique.
The TSA is also facing lawsuits from other fliers. At least two other lawsuits have been filed by passengers – one in Florida and one in Arkansas. Two commercial airline pilots have also sued, claiming that both screening methods are unconstitutional.
Although the lawsuits have publicized the privacy concerns associated with the screening techniques, some professors at the Law School have expressed doubts that the TSA’s new system could actually be declared unconstitutional.
“I’m glad that our students are learning how to be lawyers, but I wouldn’t bet on their winning this lawsuit,” Prof. Mark Tushnet said in an e-mail to the Harvard Law Record. “It might survive a motion to dismiss, but once the TSA puts forward something about the technology and the threats it’s dealing with, the lawsuit’s chances will drop precipitously.”
The fight will almost certainly be an “uphill battle,” Orin Kerr, a professor at George Washington University Law School, told the Record in an email. Kerr is one of the authors of a leading casebook on criminal procedure and a contributor to law blog The Volokh Conspiracy, where he has written previously about the constitutionality of the TSA’s new methods.
While the Supreme Court has not spoken on Fourth Amendment standards for airport security screening, the law has largely settled in the circuit courts, explained Kerr. “The basic idea is that screening to stop a terrorist attack is an ‘administrative search’ that is constitutional so long as it is reasonable — and that it is reasonable so long as it is not overly invasive given the threat that it is designed to deter and stop,” blogged Kerr.
Redfern and Pradhan believe the technology is overly invasive and ineffective. Their complaint alleges that the TSA erred in justifying the new techniques by pointing to the example of Umar Farouk Abdulmutallab, the so-called “Underwear Bomber” of last Christmas, as justification for the new techniques. Rather, according to the complaint, the TSA, through a Government Accountability Office study, has found that backscatter machines would likely not have detected the plastic explosives concealed in Abdulmutallab’s underwear. Moreover, the plaintiffs point to a variety of other technologies available to the TSA that are less intrusive.
Regardless, Kerr asked via e-mail, “From a litigation standpoint, are Harvard Law students likely to be the most sympathetic plaintiffs?”
Still, Redfern said he’d be happy if the lawsuit simply survives a motion to dismiss.
“The thing just really bothers me,” he said. “I think it’s absurd, particularly considering that there hasn’t been any notice-and-comment rulemaking, there haven’t been any studies on how effective this is…. Even if we end up losing once they start bringing forth a lot of evidence, I feel much better about them having to bring forward a lot of evidence.”