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Breast Exams at the Airport:
Do the New Security Measures Go Too Far?


Wednesday, Dec. 01, 2004

Beginning in mid-September, the Transportation Safety Administration (TSA) put into place a policy that provides for the physical frisking of selected airline passengers prior to boarding. The purpose of the new policy is to detect nonmetallic explosives of the sort that apparently were used by two Chechen women in terrorist attacks that destroyed two planes and killed ninety airline passengers in Russia earlier this year. The theory behind the policy is that the electronic equipment and wands used at airports could miss nonmetallic explosives carried on one's person.

Women passengers have been especially unhappy about the new policy and have made numerous complaints. In addition, there is reason to believe that the numbers of complaints understate the true scope of the problem, because - as with sexual assaults generally - women's distress at being fondled by airline security personnel may be underreported.

As I will explain in this column, the policy has led to severe invasions of privacy - and, at the same time, may not even be effective at locating nonmetallic explosives.

Specific Examples: Intrusive Applications of the New Policy

Last week, the New York Times provided accounts by several women who had been physically frisked at the airport. Singer and actress Patty Lupone described an airline security screener demanding that LuPone remove her shirt. After protesting, LuPone did so, revealing a thin, see-through camisole. According to the singer, the screener then "was all over me with her hands," touching areas including her groin and breasts.

An advertising executive complained that "[r]outinely, my breasts are being cupped, my behind is being felt, and I feel I can't fight it. If I were to say anything, I picture myself being shipped off to Guantánamo."

According to the Times, another female executive "reluctantly agreed to a search by a male security officer when a woman was not available. After he gave her a full body pat-down, she said, 'he lifted my shirt and looked down the back of my pants.'" A seventy-one-year-old woman who walks with a cane was also recently subjected to a breast patdown at the airport.

When Patty LuPone asked why she had to undergo this invasive search procedure, one screener responded that "[w]e don't want another Russia to happen." Whatever indignity the women were suffering, in other words, was preferable to a lethal terrorist attack. The truth, however, is that frisking may not even be effective at protecting the country from terrorism.

Why Frisking May Be Ineffective

But isn't it obvious, the reader might wonder, that if airline security personnel frisk lots of passengers, the odds of a Chechen-like terrorist attack will diminish? Not necessarily.

There are at least three problems embedded in the conclusion that frisks will help protect the country against terrorists. First, as the New York Times reports, we do not have any evidence that the Chechen suicide bombers - the inspiration for our new security measures - were carrying explosives on their persons, as opposed to in their carry-on luggage. We simply do not know. Therefore, it is not even clear that frisks would have done anything to prevent the tragic deaths in Russia.

Second, even if we suppose that the Chechen bombers did carry the explosives on their persons, we do not have evidence that a frisk policy of the sort the TSA has adopted would have detected those explosives. The frisks apply only to selected passengers - chosen at the screener's discretion. Thus, to be effective, the person carrying out the searches must be skilled at deciding whom to stop and knowing how to distinguish those who pose a threat from those who do not.

It is hard to be optimistic about their skill in this regard, however, after learning that so many women - and in particular, Patty LuPone, elderly women, and female business executives - are among those selected. Unlike in Israel, where avoiding hijackings and terrorism is also a high priority, airport security employees in this country are not extremely well paid. Thus, on the whole, they may not be especially skilled or talented.

Third, and finally, even if the frisk policy would have detected the explosives used in Russia, it does not follow that the policy will detect explosives in future terrorist attempts. Terrorists, unfortunately, can adapt to new circumstances. If he knows that he could be frisked, a terrorist can place a non-metal explosive in a location that will not be disclosed by a frisk.

The terrorist might, for example, swallow or surgically implant the explosive (thus necessitating an X-ray for detection). Or a group of terrorists could simply travel in sufficient numbers to make it likely that one would make it to the gate unfrisked.

After Richard Reid's attempt to blow up a plane with bombs placed inside his shoes, airport security began focusing on passengers' shoes. But this approach echoed France's decision to construct the famed Maginot Line following World War I. That decision assumed - incorrectly, of course - that the next German invasion would follow the precise pattern of the previous one. Measures that fight yesterday's battles are likely to fail in tomorrow's wars.

Invasion of Privacy and Dignity: The Fourth Amendment and Airport Searches

As I discussed in my last column, the Fourth Amendment guarantees the people a right against unreasonable searches and seizures. But because of the special risks that attend flight, and because people have the option of not flying, our courts have relaxed Fourth Amendment requirements in reviewing blanket searches and seizures at airports.

Lower courts have accordingly approved the use of metal detectors on every person, and the use of x-ray machines on carry-on luggage, as consistent with the Fourth Amendment. And the Supreme Court, though it has not ruled directly on the issue, has suggested its agreement. In Chandler v. Miller, the Court noted that "where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable' - for example, searches now routine at airports and at entrances to courts and other official buildings."

Once these relatively unobtrusive and universal search methods yield an articulable ground for suspecting particular individuals, moreover, these individuals can be subject to more invasive physical searches, under familiar principles.

But the frisk policy currently in place goes beyond blanket x-rays of luggage and the use of metal detectors on every person. It singles out particular people (thus heightening the stigma and humiliation) without any articulable basis for suspecting them of wrongdoing. And when it does so, the people chosen must suffer bodily groping.

The hunches of security personnel (the reliability of whose hunches is nowhere evident) are now enough to subject people to what would otherwise constitute a sexual assault, that is, a nonconsensual touching of breasts and/or groin, as a condition for innocent non-suspects traveling freely around the country and internationally.

Given the lack of evidence to suggest that these searches will have any positive benefit at all in terms of security, it would seem "unreasonable" - and thus, contrary to the Fourth Amendment - to inflict them upon passengers. As I said in another column, it is quite possible to diminish our privacy without thereby enhancing our safety. It seems that in adopting the latest frisk measure, the TSA may be doing exactly that.

Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.

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