Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Saturday, January 1, 2011

Can U.S. Air Travel Get Any Worse? Yes

Sorry to start the New Year on a sour note, but these accounts by air travellers of the new enhanced pat-downs are pretty shocking.  I take it one is only subject to these absurdly invasive searches if one declines to submit to the full-body nude x-rays (though as I understand it, the amount of radiation involved is significantly less than in an typical dental x-ray, so at least that isn't the worry).

UPDATE:  A colleague elsewhere writes:

I noted your post earlier today and wanted to suggest that the question of safety isn't entirely without some doubt.  The main point of contention relates to the tests assuming that the radiation generated by the backscatter x-ray machines permeates the whole body, rather than having it concentrated on the skin (which is precisely how these machines work).  There's some discussion here, toward the end of the post.

The studies used by TSA to establish the safety of the devices assume that the radiation passes through your full body, rather than concentrates solely on the surface of your skin.  I think that the studies also use an adult male (as opposed to a four year old child) for the prediction of the dose effects.  Also:  one would like to know whether Rapiscan paid, directly or indirectly, for any of the studies cited by TSA.  I'm not at all clear on precisely who sponsored the studies that collected the data sets used for analysis; if the industry building the machines directly or indirectly sponsored the analysis, it should be taken with more than a grain of salt.  (I know that Rapsican hired some major lobbying guns, including Linda Daschle, wife of Tom Daschle, and former DHS Secretary Michael Chertoff -- it stands to reason that some research grants to scientists studying radiation might have been part of the picture as well.)

One also must assume that the machines are properly calibrated and working properly in every instance -- anyone who owns a microwave oven knows that they can and do fail (at both extremes).  Do you really think that the TSA is actively monitoring the radiation dosage a given machine emits on a regular basis?  Moreover, given the government's general immunity from liability, if the TSA does operate a rogue machine, you are not going to recover absent a private bill from Congress (unlike your dentist, whom you can sue directly for damages).  DDT, the Dalkon Shield, Agent Orange, etc.  For myself, I'm not willing to trust the government's competence to study and operate these machines against an increased risk of skin cancer.  And, that's before you even reach the privacy issue.

I was advised by my dermatologist to "opt out" of the backscatter machines -- he said that if the choice is "between being irradiated and not being irradiated, you should always choose the latter."  I also, by happenstance while waiting to be subjected to an "enhanced patdown" after opting out at an airport using the AIT machines, was standing next to another "opt outter"; I asked him why he elected the pat down.  He said he was a radiation technician and that, working with x-ray machines, he had no intention of being subjected to an x-ray unless it was necessary medically.  He also said that x-ray machines malfunction more often that you would think -- it struck me that he should know.

Finally, the pilots and flight attendants refused the scans and now enjoy, courtesy of the TSA, a blanket exemption from being subjected to an electronic strip search as a primary means of screening at TSA checkpoints.  They argued, persuasively to me, that being subjected to the radiation repeatedly, on a daily basis, presented an unnacceptable health risk. (They also argued that they presented a low security threat, given that they had already undergone security background checks as a condition of their employment and were responsible for the safety of the plane and passengers in any event.)

To be clear, if one flies once a year to see Grandpa or Aunt Mae, I don't see much of a health risk.  On the other hand, I flew over 100,000 miles last year, and have four round trip flights in January 2011 alone.  Whatever the abstract risk for an infrequent flyer, I'm not prepared to have a dental x-ray per week (or rely on TSA actually maintaining these machines properly -- recall the episode of the puffer machines, which TSA abandoned because of an inability to maintain them).

Again, I don't mean to suggest, and am not suggesting, that there are severe risks associated with the backscatter versions of the strip search machines.  That said, there are some risks, and they are sufficient to have led Germany and Spain to reject the backscatter machines.  And, I'm bracketing entirely the "security theater" aspect of all of this -- hundreds of unscreened people have access to planes on a daily basis, much air cargo isn't actually searched physically, etc.  The YouTube videos by the California pilot more or less demonstrate that airports are far from airtight security zones.  The whole think smacks of a typical agency response to being publicly caught in a high profile failure:  "We have to been seen as doing *something*, right?"  So, the failed, European-airport underwear bomber precipitates strip searches and police arrest frisks; the Deepwater Horizon disaster leads to a blanket ban on new offshore oil drilling permits, etc.

For the record, my own experience has not been all that bad with the enhanced pat downs, although I find them offensive and unreasonable.  To date I've had three, and all were conducted in a more-or-less professional fashion, without undue touching, squeezing, or sexual fondling.  That said, I have found a list of airports with the strip search machines  (CNN published a list this fall) and have started trying to avoid them whenever it's possible to do so.  This strategy will not work for the long term, absent the sort of mea culpa that administrative agencies never make, but for the short term, it's a reasonably effective approach.  Moreover, even at airports with AIT "strip search" machines, you can usually select a security line that either does not have or is not using the machines when you pass through the TSA check point (at least at larger airports, like ATL, LAX, or SEA); if you can avoid the AIT machine, you also can avoid having to "opt out."  One last thought:  only about 1/3 of U.S. airports currently have AIT machines and hundreds of daily inbound U.S. flights originate outside the U.S. even though most foreign airports do not use either the AIT machines or the police frisks/enhanced pat downs.  If these new TSA protocols are truly essential to "safe" air travel, there are an awful lot of unsafe flights in the air on a daily basis.  Again, all of this smacks of an effort to be seen as doing something, rather than doing something effective or essential.

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