On July 15, 2011, a United States federal appeals court rejected in part a constitutional challenge filed by the American public interest research center, the Electronic Privacy Information Center (EPIC), against the US Department of Homeland Security (DHS). EPIC challenged the Transportation Security Administration's (TSA) use of full-body scanners instead of magnetometers (security gates and wands) at US airports since the full-body scans force travellers to give up significant privacy. (The case was previously reported on Slaw here).

Despite the rejection, the court found that the TSA did violate the Administrative Procedure Act, which requires federal agencies to provide notice and opportunity for comment when implementing a rule that affects the rights of the public. The TSA should have followed routine procedures giving the public an opportunity to file comments, according to the case report.

Writing for the court, judge Donald H. Ginsburg noted the TSA had "no justification for having failed to conduct a notice-and-comment rulemaking." This failure was particularly important because, "few if any regulatory procedures impose directly and significantly upon so many members of the public."

As to the statutory and constitutional claims, in the court’s opinion, "Despite the precautions taken by the TSA, it is clear that producing an image of the unclothed passenger … intrudes upon his or her personal privacy in a way that a magnetometer does not."

But Ginsburg concluded that the close-up searches are reasonable and justified because lives are at stake and because the scanners—or the optional pat-down—offer the best way to prevent a passenger from carrying non-metallic explosives onto an airplane.

While Ginsburg noted "That balance [between privacy and security] clearly favors the Government", in the court’s opinion, the TSA has taken steps to protect passenger privacy, and passengers can opt out of the full-body scan and receive a pat-down.

In other words, in this case, the end (national security) justifies the means (privacy-intrusive scans). It’s reasonable to assume, however, that this isn’t the final challenge to the use of the full-body scanners that EPIC (and perhaps others) will make on behalf of American air travellers. And of course there are the isolated cases of abuse of the scanners by TSA staff.

There is a positive side to this decision for privacy rights activists; the court clearly stated that the TSA failed in its efforts to notify the public and allow for consultation on the use of the full-body scanners. This might be something on which EPIC can build a future legal challenge.

On the other hand, air travel remains as popular as ever. And I suppose if I were pulled out of the security line for an enhanced inspection, I would choose a “private” full-body scan rather than a pat-down. Despite my misgivings, I’d still rather have a stranger look at a crude image of my body than have that stranger touch my body.

Since it is generally accepted that the full-body scans invade travellers’ privacy (the federal appeal court admitted as much), I think the real question is whether the scanners are actually having the effect that the US Government and others believe they are. But that question is much more difficult—and maybe impossible—to answer.