Stripping Us of Our Rights: DHS, Naked Body Scanners, and the Fourth Amendment

Stripping Us of Our Rights: 

DHS, Naked Body Scanners, and the Fourth Amendment

Cynthia F. Hodges, JD, LLM, MA

Naked body scanners and invasive “enhanced pat-downs” at airport checkpoints have caused a public uproar for invading travelers’ privacy. Now, the Department of Homeland Security (DHS) is deploying roving Z Backscatter Vans (ZBVs) equipped with mobile backscatter x-ray scanners to sneak a peek under pedestrians’ and motorists’ clothing. Such searches could violate a person’s rights under the Fourth Amendment to the Constitution.

ZBVs’ primary purpose is to image vehicles and their contents. DHS describes the scanners as “a walk through x-ray screening system” that allow for “covert inspection of moving subjects.” The technologies they use, backscatter imaging technology and active millimeter wave systems, cannot only peer into cars to reveal hidden objects, but can also see under clothes and into buildings. 

Marc Rotenberg, the president of the Electronic Privacy Information Center (EPIC), has called ZBVs “one of the most intrusive technologies conceivable.” These “mobile strip search devices” allow the government to search under one’s clothing without one’s consent - or even knowledge. In this case, the technology used is the digital equivalent of a full-blown search. These searches may violate the Fourth Amendment, which limits police conduct by forbidding unreasonable searches. The Fourth Amendment’s purpose is to safeguard the privacy of individuals against arbitrary invasions by government officials. The Fourth Amendment guarantees the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment requires police to obtain a warrant before conducting a search. Without prior judicial approval, a search is per se unreasonable unless the failure to comply with judicial process is excused by exigent circumstances.

An intrusion upon constitutionally guaranteed rights must be based on more than the good faith of the officer or an inarticulate hunch. A police officer must be able to point to specific and articulable facts that reasonably warrant an intrusion on a person’s rights. The facts must be judged against an objective standard: would the facts available to the officer at the time of the search lead a reasonably prudent person to believe that the search was appropriate? If not, then the search is illegal. 

The scope of a search must be strictly tied to and justified by the circumstances that made it permissible. If there are exigent circumstances, the search must be strictly circumscribed by the exigencies that justify the search. If a police officer has a reason to believe that he is dealing with an armed and dangerous individual, he may search for weapons, but the search must be limited to that which is necessary to discover weapons. The Supreme Court has found that an officer may conduct a carefully limited search of a person’s outer clothing to search for weapons in cases where the officer observes unusual conduct that led him to reasonably conclude that criminal activity was afoot and that the person may be armed and dangerous. However, the Court also said the officer first had to identify himself as a policeman before conducting the search.

In the case of ZBVs, advanced technology enables police to secretly view private activities. Such activities are not stripped of Fourth Amendment protection. Obtaining information from a constitutionally protected area, such as the interior of a house, using sense-enhancing technology constitutes a search entitled to Fourth Amendment protection - at least where the technology is not in general public use, as is the case with ZBVs. If the police do not have a warrant and there are no exigent circumstances making the search reasonable, such as suspicious behavior, the police are engaging in an unlawful search. 

The courts are ultimately responsible for guarding against lawless police conduct by excluding the fruits of illegal searches from evidence at criminal trials. This exclusionary rule is not only meant to deter illicit police conduct, but also serves to ensure judicial integrity. Courts are not to be made a party to illegal invasions of Constitutional rights by permitting government to benefit from such invasions.

References

Mike Adams, “TSA, DHS plan massive rollout of mobile surveillance vans with long-distance X-ray capability, eye movement tracking and more,” March 06, 2011, available at http://www.naturalnews.com/031603_surveillance_police_state.html

Andy Greenberg, “Documents Reveal TSA Research Proposal To Body-Scan Pedestrians, Train Passengers,” Forbes, March 2 2011, available at http://blogs.forbes.com/andygreenberg/2011/03/02/docs-reveal-tsa-plan-to-body-scan-pedestrians-train-passengers

Andy Greenberg, “Full-Body Scan Technology Deployed In Street-Roving Vans,” Forbes, August 24, 2010, available at http://blogs.forbes.com/andygreenberg/2010/08/24/full-body-scan-technology-deployed-in-street-roving-vans

Katz v. U.S., 389 U.S. 347 (1967)

Kyllo v. U.S., 533 U.S. 27 (2001)

Samantha Murphy, “TSA aimed to put body scanners in public places,” The Christian Science Monitor, March 4, 2011, available at http://www.csmonitor.com/Business/2011/0304/TSA-aimed-to-put-body-scanners-in-public-places

Samantha Murphy, “Lawsuit Filed Over Airport Scanner Privacy, Health Concerns,” TechNewsDaily, August 6, 2010, available at http://www.technewsdaily.com/lawsuit-filed-over-airport-scanner-privacy-health-concerns-0993

Terry v. Ohio, 392 U.S. 188 S.Ct. 1868 (1968)

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Cynthia F. Hodges, JD, LLM, MA

Attorney at Law

Author: Den of Vipers: Central Banks & the Fake Economy

Website: cynthiahodges.com

Juris Doctor: South Texas College of Law (Houston, TX)

LLM (Environmental Law): Lewis and Clark Law School (Portland, OR)

Masters of Arts (Germanic Studies): The University of Texas at Austin

Law License: Washington State

James P. Hodges, Ph.D.

Author of Beyond the Cherry Tree: the Leadership Wisdom of George Washington

Website: Leadership by George!

Winner of the Freedoms Foundation at Valley Forge Medal of Honor

Member: National Speakers Association, American Society for Training and Development

Order Beyond the Cherry Tree

   

Example of Effective Leadership: George Washington

The make or break moment that defines a leader is when s/he transitions from personally performing tasks to supervising others. George Washington set himself apart as an outstanding leader in the following ways. 

Washington formulated a vision of the ideal future, which he balanced against short-term goals. To fulfill his vision, he developed a mission statement of the action steps that had to be taken. He shared these with his team so that they would feel a joint ownership and accept responsibility for accomplishing the goals. 

Washington was aided in making tough and timely decisions by seeking advice from others. He would carefully consider their opinions, then make a decision. Once he reached a decision, he rarely changed it unless unusual circumstances warranted a revision. He avoided being indecisive, which is fatal to effective leadership. No one trusts an indecisive leader.   

Washington surrounded himself with good people who were emotionally secure enough to not resent being outshone. Knowing he could not do everything by himself, he delegated responsibility and authority to others, empowering them to make great accomplishments. Early on in the French and Indian War, he appointed Gist to be his chief aide. In the Revolutionary War, he appointed Generals Greene, Knox, and Lafayette to vital leadership posts,  Before and during the Constitutional Convention, Washington made Madison a key figure. He also appointed Jefferson, Hamilton, Knox, and Randolph to his first presidential cabinet. Their achievements reflected well on  him and added to his credibility.  

Washington managed resources, especially human resources, very well. For example, he  never ordered his soldiers to attack entrenched British troops. He thought it best to attack an unprepared enemy - not one who was ready and waiting. At Trenton, he ordered a dawn attack to catch the drunk Hessians off guard (see Christmas 1776 - Victory or Death at Trenton). The attack devastated the British allies and secured an important victory for Washington.

Washington was careful not to de-motivate the people in his charge with too much red tape. He was also careful to not treat them with distrust or suspicion, or use diresprctful command and control techniques to convey orders. 

Washington respected the diversity of his soldiers' different cultures, religions, races, etc. Upon assuming command of the Continental Army at Cambridge, Washington faced the problem of prejudice among the militias of the four New England colonies surrounding the British at Boston. It was problematic because the soldiers of one colony would not serve under an officer from another colony. Washington appealed to their pride of belonging to the whole of the Colonial effort, not just to individual colonies. The militiamen were then willing to work together. Washington's Continental Army was also fully integrated. African-Americans fought alongside white colonists.

Washington was a good listener and he cultivated an open door policy. Even the lowliest private who called upon him was welcomed and received with respect. Washington sought to gain valuable information from each conversation by asking pertinent questions.

Washington learned from his  mistakes. During the French and Indian War, he had his men holed up at Fort Necessity, where the enemy overwhelmed the. With no avenue for escape, Washington was forced to unconditionally surrender his men en masse. Washington never again allowed men under his command to be trapped in a fort. Another unfortunate incident was at the Jumonville massacre. While interrogating a French diplomat, Washington carelessly allowed the Indian ally to tomahawk and scalp his prisoner right before his eyes. Never again did anything of the sort happen under Washington's watch. Contrast this willingness to learn to the British attitude. At Bunker Hill, the British ships could have blasted American lines to oblivion, but their officers wanted to show off how brave and capable their soldiers were. The troops were forced to march up a steep hill with 120 pound back packs, which slowed them down. The British soldiers were slaughtered. In WWI, 150 years later, the British did the exact same thing, leading to another massacre of British troops.

Washington was flexible and could adapt to changing situations. At first, Washington thought he had to defeat the British Army to win the Revolutionary War. At some point, however, he realized all he had to do to win was to just not lose. To that end, he fought a war of attrition to exhaust the British will to fight. 

By looking to Washington's leadership methods, anyone can improve their leadership skills.  

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James P. Hodges, Ph.D.

Author of Beyond the Cherry Tree: the Leadership Wisdom of George Washington

Website: Leadership by George!

Winner of the Freedoms Foundation at Valley Forge Medal of Honor

Member: National Speakers Association, American Society for Training and Development

Order Beyond the Cherry Tree