Much of the opposition to airport body scanners invokes the Constitution; one company is even selling pasties emblazoned with the Fourth Amendment to protect passengers' dignity while passing through scanners.
But the Fourth Amendment, along with most of the Constitution, does not apply in the airport the same way it does in most public spaces. U.S. airports are a Constitutional "twilight zone" - the rights you have in the outside morph once you step inside the terminal, and it has been this way long before September 11.
Federal law requires commercial airline passengers to be searched prior to boarding a plane and airlines cannot transport any passenger who refuses (49 U.S.C. § 44902). Over the past 40 years, the courts have repeatedly upheld the constitutionality of warrantless airport security screenings as part of an overall regulatory effort to prevent hijackings and other terrorist activity.
The Supreme Court states that blanket suspicionless searches are allowed in the airport as long as terrorism poses a risk to public safety.
But, the government's right to search citizens in an airport is not unlimited. The government must show that a clear need or immediate danger to justify the level of intrusion imposed on passengers. According to the Ninth Circuit, airport searches must be no more extensive or intensive than necessary, in light of current technology, to detect the presence of weapons or explosives.
Some would argue that body scanners are more extensive than necessary. But the government would likely argue that they are justified, because terrorists have tried to smuggle bombs in their underwear, and therefore the scanners are helping them look for a demonstrated threat in the very place that threat was found to exist.
["[O]nce a passenger enters the secured area of an airport, the constitutionality of a screening search does not depend on consent. That legal conclusion rests firmly on Supreme Court precedent and on the government's interest in ensuring the safety of passengers, airline personnel, and the general public." - Aukai v. United States, 04-10226]
According to the courts, airline passengers also consent to be searched when they choose to fly. When a person consents to a government search outside the airport, they have the right to revoke their consent at any time, but not at the airport.
The courts have held that once a passenger elects to enter into the secured area of an airport by walking through the security screener or by merely placing items on the conveyor belt of the x-ray machine, they have effectively consented to the screening, and they cannot revoke consent.
The government argues that if passengers were allowed to change their minds, it would allow terrorists multiple opportunities to attempt to penetrate airport security by electing not to fly on the cusp of detection until they can slip through.
The persistent threat of terrorism over the past decades gives airports wide latitude to infringe on the Fourth Amendment, and airports are able to restrict other rights as well.
Individual gun rights under the Second Amendment vary widely from state to state, but even in a state where a citizen has the right to carry a concealed weapon in public spaces, they lose that right once they enter the airport.
Passengers may bring guns with them when they travel on planes, but TSA requires that guns be unloaded, stored in checked baggage, and properly declared with the airline. Failure to comply with TSA rules can result in civil fines of up to $7,500 and possible criminal charges.
Gun rights groups have attempted to expand gun rights into airport terminals, and in 2009 GeorgiaCarry.org, a gun rights organization in Georgia, sued to allow licensed gun owners to carry their guns in Atlanta International Airport.
Even though Georgia state law allows concealed firearms in restaurants, state parks and mass transit, the 11th Circuit held that state gun rights do not extend to the airport, and the Atlanta airport remains a gun-free zone.
Commercial airports are paid for by taxpayers and overseen by the government, but the airport is not considered a public place when it comes to free speech. Freedom of speech is afforded a much lower level of protection in an airport, and airports have been able to suppress speech by arguing a need to reduce congestion or combat fraud.
The government can also restrict free speech in the airport as long as they show that the restriction has a rational relationship to a legitimate government objective. This is the lowest level of protection that can be afforded to free speech in the U.S.
The First, Second and Fourth Amendments are just three examples of how the Constitution is reduced in the airport in an effort to combat terrorism. So, how can passengers protect their dignity and assert their Constitutional freedoms within the airport?
The aforementioned pasties are likely the closest passengers will get to full Constitutional protection at a TSA screening area.
More Coverage of TSA Security Screenings:
TSA Chief Asks for Public's Pat-Down Cooperation
TSA Pat-Down Leaves Mich. Man Covered in Urine
Ex-NTSB Chief: Terror Threat to Air Travel Real
New Undies Protect Privates from TSA Scanners
Could Behavior Analysis Help TSA Debate?
TSA: We're Trying to Balance Safety, Dignity
TSA "Always Evaluating Security Operations"
Security Protest May Hinder Thanksgiving Travel
Clinton: I'd Avoid Airport Pat-Down if Possible
TSA Modifies Screening Rule for Pilots
Torches & Pitchforks at Airport Security
By Paula Reid