“Opt out!” the TSA officer yelled at me in a startling manner as I stood in the security line at Reagan Washington National Airport. “Opt out!” I heard in the distance. “Opt out!” was yelled for a third time from another direction as my head swiveled and everyone seemed to be staring at me. Suddenly, my bags were swept off the X-ray machine and I was instructed to remove everything from my pockets (boarding pass, a gum wrapper, a crumpled Starbucks receipt), untuck my shirt, hike up my pants and “assume the position” for a disturbingly invasive frisking that seemed eerily similar to a pre-conjugal visit pat down (or so I’ve heard).
As I spread my legs, I had visions of Harvey Keitel in Bad Lieutenant while a very unhappy man intimately touched me in ways that I will not recount on this blog (but can assure you have historically been preceded by a first kiss). Simultaneously, another TSA officer opened my bag for a bout of aggressive rummaging and began testing my unmentionables for bomb residue. When I asked why all this was necessary, I was gruffly informed that it was for my security and I should “get used to it.” To quote my new TSA friend with benefits: “Don’t you remember the underwear bomber? That’s why.” When they were done, I put my clothes back on and gathered my belongings, meekly skulking away towards my gate like Jodie Foster in The Accused.
What had I done to instigate this unsettling ballet that would be aptly titled “Le Opt Out”? Simply told, I declined a TSA officer’s request to leave my much faster metal detector security line for the body scanner security line. As a result of this insubordination, I won a trip through the metal detector (which I was already set to go through) and endured what I have dubbed the “Sanctioned Crotch Reach ‘Opt Out’ Deterrent” (or SCROOD for short.)
For those have not yet experienced this wonder of modern technology, the body scanner is able to allow your friendly neighborhood TSA officers to look under you undies (assuming you have no Flying Pasties) to make sure that you are not smuggling weapons onto a plane (although there is serious debate on its effectiveness). Don’t worry, the program apparently blurs your face, it’s only everything else that is exposed to a stranger sitting 10 feet away. Also, as a bonus, it blasts you with “safe levels” of radiation through a “backscatter X-ray process” that is not powerful enough to send radiation all the way through your body, only through your skin.
A recent NY Times piece seems to have ignited a powder keg of anger on the web that has been growing over the last year. In fact, there is a National Opt Out Day Protest planned for this November 24 (where everyone is asked to “Opt Out” on the busiest Thanksgiving travel day). A brief Google search uncovers that it’s hard to find a news organization that is not taking a negative slant on this new technology (CNN, Fox News, ABC, CNET, CBS, NPR, etc.). The question is: Is this legally acceptable?
The Electronic Privacy Information Center (EPIC) has filed a lawsuit that moves to stop the utilization of body scanners through a number of interesting arguments (you can read the brief here). Amongst its claims, EPIC argues that the scanners violate the Fourth Amendment, the Privacy Act, the Administrative Procedure Act and (most interestingly) the Video Voyeurism Prevention Act. This last assertion utilizes a law that was passed to prevent people from installing cameras to look up women’s skirts. (Who needs that ancient technology anymore?)
A similar backlash has been ongoing in the U.K., where the scanners were forced to become optional for children under 18 years of age because the naked images would violate child pornography laws. What has not yet been brought into legal question is the regular use of invasive pat downs for children that do not go through the scanners. Even the U.N. Human Rights Council has weighed in on the question of privacy rights lost through the use of body scanners and pilots unions are advising their members to avoid the scanners based on health concerns and employment rights.
Litigation consultants travel a lot and this is the life I have chosen. I am not one to downplay the need for security on planes, especially since I spend so much time on them. However, it is also necessary to ask the question “Where is the line that makes the sacrifice greater than the gain?” Luckily, I’m not the only one asking this question. Given the current plan to rapidly replace all metal detectors with radiation-driven body scanners in the name of security, it’s nice to know that some people are forcing us to take a breath and think about the health concerns, privacy rights and fiscal responsibility that we find equally as valuable.
Blogger: Matt McCusker