The first thing you have to understand here is that the constitutionality of airport searches isn't in question. SCOTUS has upheld a doctrine of "administrative searches", taken in order to advance public safety rather than criminal investigations, which are explicitly intended to apply universally, without a warrant, and without individualized suspicion.
The second bit of background you should have is 49 USC 44925, which mandates that the TSA research and deploy advanced screening technology, specifically to detect nonmetallic objects. I'm no lawyer, but I do enjoy reading SCOTUS civil liberties opinions, and by and large the court seems to give deference to the legislature when no clear constitutional issue is at stake. In sum: the court has an "out" here, which is "the intent to search passengers is already constitutional, so if this variant of the search is so bad, pass a law".
The Supreme Court has not outlawed strip searches (obviously they can't, as virtually everyone who gets arrested and booked is strip searched, guilty or not). If you read the Savana Redding opinion (8-1 "it's unconstitutional to strip search an 8th grade girl for ibuprofen"), you'll see things like "Its indignity does not outlaw the search, but it does implicate the rule that "the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’". That is, unfortunately, not a hard case for TSA to make. The fact that the Savana search was for "nondangerous contraband" also factored into the opinion.
(If you want to throw up in your mouth a little bit, track down Clarence Thomas' dissent which argued that it is indeed constitutional to strip search a 13 year old girl in school to track down Advil.)
Finally, the arguments EPIC makes here do not seem awesome. Part of their argument turns on administrative rulemaking procedures at TSA, which TSA seems to dismantle efficiently in their response. Other parts drag in things like the Religious Freedom Restoration Act, which is (a) a longshot argument for petitioners who can claim no personal religions infringed on and (b) is neatly sidestepped by the TSA "opt-out" rule. Speaking of opt-out: EPIC claims that there is no effective opt-out procedure, which is also a hard argument to defend without an example of someone refused an opt-out. And on this janky scaffold of arguments, EPIC wants an emergency injunction against the scanners?
Don't get me wrong, I'm obviously in their corner on this. I'm thrilled if they win. And they've got some painful evidence, such as FOIA docs showing TSA required machines with store/transmit capabilities (oops!). But my guess is that if we want to get rid of the strip search machines, we're going to have to do it by voting out the people who approved them.
You're mistaken in practically every assertion you make above.
Without going over a point-by-point of the various ways your post is incorrect (e.g. regarding the scope of administrative searches; the ability of the SCOTUS to regulate searches at jails; the actual lawsuits which have resulted in most jails being much more limited in the scope of their searches absent reasonable suspicion; the TSA's inability to detect shoe bombs with the normal x-ray machines and underwear powder bombs with the new scanners; people who HAVE been refused an opt-out (reports at FlyerTalk.com); "voting out" the people who approved them, when a primary mover behind them is the Chertoff group, headed by former DHS head Michael Chertoff, who stand to gain financially from their lobbying thanks to ties to Rapiscan; and so forth), I am going to repost something from the other day which bears repeating.
There are multiple problems with TSA screening in general, and backscatter machines in particular, which are listed below.
As these machines are ill-advised, you currently have the option to "opt out" and receive a pat-down instead.
PAT-DOWNS:
New guidelines just instituted for the pat-down procedure include groping of breasts, buttocks, and crotches. [8][15]
Even for minors. [13] [14]
"My wife tells me that they grabbed my [10-year-old] son's privates and he was crying the whole time and all she could do was stand there and tell him it was going to be OK." [16]
Due to this, the ACLU is now taking reports of pat-down abuse:
Note that going through a scan does NOT exempt you from a pat-down grope. You may be groped if you trigger a metal detector, or if your backscatter shows an "anomaly", or for any other reason or no reason at all. There are also gate screenings, where you will be pulled aside at the gate, and since there are no machines, you will be patted down / groped.
IMPACT
About 1 in 5 people are sexually assaulted by age 18. [1]
This means that even "normal" pat-downs are extremely distressing or damaging to a significant percentage of the population, and these new procedures are simply sexual assault under color of authority, which can be traumatic. Victims of sexual assault, molestation, and rape often feel like they are re-living their experiences, and even those who don't have such a background may experience emotional damage from the procedure.
I defy anyone to belittle the experience of victims of sexual abuse, who do not want any unwanted touching forced upon them, least of all groping of private areas.
BACKSCATTER SCANS
All the official images have been redacted. Here is what it REALLY looks like, scaled down:
This is an artist's self-portrait using a Rapiscan Secure 1000 security scanner [17]. In addition to clearly seeing his genitals, note the penetration into his kneecaps, shin bones, and feet. Then consider the unprotected areas, such as face, neck, and eyes. Look more closely and you can see the bones in his forearms (radius, ulna), part of his humerus, and his hands.
Then consider the findings of people like David Brenner, the head of Columbia University’s Center for Radiological Research, who explains that the dose is actually 20 times higher than the official estimate. [2] [3] [4] [5]
The energy is absorbed mostly in the skin, NOT throughout the volume of the entire body as with other types of ionizing radiation. Also, the dosage is delivered in a few (under 30) seconds. You have to consider dose per unit time; the figures often mentioned for long flights mention the total dose, which is distributed over a period of HOURS.
PRIVACY
The TSA originally claimed that these machines were simply INCAPABLE of storing images. That wasn't true:
"The documents, released by the Department of Homeland Security, reveal that Whole Body Imaging machines can record, store, and transmit digital strip search images of Americans" [6]
This also goes for MMW (millimeter wave) machines used by courthouses:
"Feds admit storing checkpoint body scan images" [7]
ANONYMITY
Some locations are now using a full-color video camera in addition to the backscatter / MMW imager. This means your full-body color portrait and unclothed image can be linked; and if they scan your boarding pass or other identifying information, they can link your images to your name and other personal information (phone number, address, BIRTH DATE). [12]
SLIPPERY SLOPE
Originally the TSA claimed the backscatter machines were optional and there was no penalty for declining (no groping); that they had no capability to store images; that they would NEVER be used as primary screening instead of metal detectors (now they ARE being used as primary screening in some airports with plans for the rest -- see [9] [10]).
The supposed motivation for storing images would be in case of another attempt like the underwear bomber, to go back and "check the tapes" to see what they missed.
You should probably assume that if you are scanned, your full-color and naked images along with personal identifying information will be stored by Federal agencies in perpetuity.
EVEN DHS HEAD REFUSES BODY SCANNER
"Department of Homeland Security Secretary Janet Napolitano yesterday hailed them as an important breakthrough for airport security and the fight against terrorism."
"Yet when it came to testing the devices - which produce chalky, naked X-ray images of passengers - she turned the floor over to some brave volunteers." [11]
OPT-OUTS MAY NOT LAST
In the U.K., whole-body scanners have been mandatory for some time. This may well come to the U.S.
So, you will be forced to be scanned, after which you may be groped anyway, then groped again at the gate, and your images both clothed and naked will be in the bowels of a government database, which then gets turned over to various private industry bidders, who all will have a copy of all your information.
Some scanners take images in real-time at a decent framerate, which means your 3D biometric information of every part of your body will soon be recorded forever and used in any number of ways.
>The energy is absorbed mostly in the skin, NOT throughout the volume of the entire body as with other types of ionizing radiation. Also, the dosage is delivered in a few (under 30) seconds. You have to consider dose per unit time; the figures often mentioned for long flights mention the total dose, which is distributed over a period of HOURS.
First, your comparison is misleading. The dose of a backscatter x-ray is about 0.02 uSv [1]. The dose rate at 40,000 ft is around 6 uSv/hour [2]. Simply sitting in an airplane exposes you to the equivalent of a backscatter x-ray every 12 seconds (not "hours"). The dose rates are comparable; the flights last hundreds of times longer, hence give hundreds of times higher doses.
Second, your emphasis on "dose per unit time" (or dose rate) isn't actually important. For low doses (and these are EXTREMELY low doses), there is no difference between fast and slow exposure [3]:
>When you are asked whether there is a critical time period over which 1 rem of dose may have a greater biological impact than it might otherwise have, the answer is "No." One rem of dose is sufficiently low that whether it was delivered within one second or spread over a year or more, we would not expect any difference in biological effects.
(Note 1 rem = 0.01 Sievert (Sv) -- 500,000x higher than a backscatter x-ray).
This is a little long, so I am going to summarize at the top. I will show that:
1) The estimates are much higher than what you cite;
2) Typical exposure when flying is much lower than what you cite;
3) Dose per unit time DOES matter;
4) The HPS article references their own position paper which doesn't mention differences with short time intervals;
5) The regulations for low-dose exposure are extrapolated from high dose data, because of a lack of studies at low doses;
6) Because of this, the HPS recommends against quantitative risk estimates, because the precise risk is hard to quantify;
7) The lack of data means they are being disingenuous when they say no, as they lack the data to establish it. Note the phrasing: "we would not expect" -- this despite the data we DO have, which establishes that units of time matter;
8) Despite that one position paper, which tries to dismiss health risks below 5-10 rem, their own position paper on backscatter scanners recommends per-screening and per-year (time limit!) maximums far below that threshold;
9) Going by the contact information and president, the HPS may have turned into an industry front. Citing HPS might be as credible on these issues as citing Philip Morris spokespeople on the dangers of cigarettes.
In order:
---------
1) "According to the Health Physics Society (HPS), a person undergoing a backscatter scan receives approximately 0.005 millirems (mrem, a unit of absorbed radiation). American Science and Engineering, Inc., actually puts that number slightly higher, in the area of .009 mrem."
That's .05-.09 uSv. Secondly, as previously mentioned, Brenner estimates the effective dose is 20 times as high due to factors like less volume for absorption.
That means the estimated dosage is in the range of 1-1.8 uSv, or 50 to 90 times what you mention. Not a trivial discrepancy.
2)40,000 feet is close to the altitude ceiling for most commercial aircraft. With a 30,000-foot cruising altitude, the exposure drops in half; at 20,000 feet, it drops to a sixth; at 10,000 feet, it's about 1/35th. According to your second reference.
Short business trips may even be below 10,000 feet. It takes too much time (and fuel) to reach riskier altitudes.
So "simply sitting in an airplane" is not the same as cruising at 40,000 feet on a transatlantic flight.
3) You say:
> Second, your emphasis on "dose per unit time" (or dose rate) isn't actually important.
Let me quote from your own source:
"There have been numerous biological experiments conducted, with nonhuman organisms, that demonstrate that the rate at which radiation dose is delivered can affect the extent of biological response. Thus a sufficiently high dose delivered over a period of a few minutes may be expected to have a greater biological impact than the same dose spread over a year."
The only question is what constitutes a "sufficiently high" dose, due to extrapolation. See 5).
4) Further, the terse "no" answer looked disingenuous. The cited position paper link was broken but I tracked it down.
It appears to be "Radiation Risk in Perspective", PS010-2 (which I assume is the updated version of PS010-1).
It has nothing to say about doses over short time periods.
"the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources."
7) The whole point of their objection was that we lack the empirical evidence to extrapolate from high doses to low doses. Then the article you cite does exactly that. They go from saying, "we lack proof that the answer is X" to saying, "the answer is ~X".
8) The recommended standard "limits the reference effective dose delivered to the subject to 0.25 microsieverts (25 microrem) per screening. Additionally, a screening facility should not expose any individual to more than 250 microsieverts (25 millirem) reference effective dose in a year."
"Use of Ionizing Radiation for Security Screening Individuals" PS017-1
How they can go from saying in the first paper, "However, below 5–10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent" to supporting a maximum of 0.025 rem per year is entirely unclear.
9) Doing some digging, PS010-2 lists a single reference:
"National Council on Radiation Protection and Measurements. Uncertainties in fatal cancer risk estimates used in radiation protection. Bethesda, MD: NCRP; NCRP Report No. 126; 1997."
"In early 1996, Dr. Maher accepted the position as Director of the Environmental Laboratory for Yankee Atomic Electric Company. The laboratory provided ongoing environmental laboratory, remediation and consultative health physics services for commercial nuclear power, Department of Energy and Department of Defense clients. [...] In 2004, Dr. Maher joined Dade Moeller & Associates"
"Hirsch then zeroed in on Dade Moeller’s radiation plan and on the controversial company itself, whose namesake testified back in the 1990s that money spent on cleaning up Cold War-era nuclear facilities was being wasted since there would be a cure for cancer.
Hirsch also questioned the lab’s integrity and pointed out that it is a major Department of Energy (DOE) contractor. The area of Rocketdyne where most of the nuclear mishaps occurred was operated by the DOE, which is responsible for cleaning up the mess. It also borders Runkle Canyon, which leads Hirsch to believe that Dade Moeller shouldn’t be overseeing radiation sampling there.
Some of Hirsch’s harshest criticism was aimed at Dade Moeller’s plan to take a “tiny soil sample” every 19 acres based on the lab’s misconstruing of EPA standards regarding soil investigations of potentially polluted properties. The proximity of Runkle Canyon to Rocketdyne, and the fact that 58 soil samples in a previous test all read high for the leukemia-causing radionuclide strontium-90, were among several critical considerations that Dade Moeller ignored, according to Hirsch.
“If you want to hire someone to make your problem go away, you hire Dade Moeller,” Hirsch asserted. “That’s a generality, the reputation. If you read the actual report, I’m afraid it is completely reinforced. Every time you can manipulate an input, make a number go down, they do so.”
Dade Moeller was the go-to lab for a covert set of strontium-90 tests of Runkle Canyon’s soil in 2005, as this reporter previously uncovered. Those tests, which took just five soil samples, were later dismissed as useless by the California Department of Health Services, the very department that conducted the secret limited sampling with Dade Moeller."
"Hirsch said the conclusions of the report should immediately raise suspicion since the developer hired the consultant who created the report, Dade Moeller & Associates. He called for DTSC to use an independent consultant.
“The city wanted an independent study,” Hirsch said. “You can’t hand that over to the advocate for the developer.”"
This seems to be in stark contrast to the activities of the founder of the Health Physics Society. He was the first president of HPS, from 1955-1957, and was apparently a real thorn in the side of the nuclear establishment.
Yeah, uh, I don't disagree with anything (except your first graf) you wrote, and I'm glad to give you a chance to get that off your chest, but, want to bet?
(Oh, I get it. I read your comment and replied while waiting for someone for dinner; now, at home, it's apparent that you think I'm somehow in favor of full body scans. Read to the end of the comment. Note: I don't think you actually replied to any of my points.)
Well said nubian. I sent this link to a civil liberties lawyer who didn't think much at all of tptacek's comment and was surprised to see it rated so highly.
The first thing you have to understand here is that the constitutionality of airport searches isn't in question. SCOTUS has upheld a doctrine of "administrative searches", taken in order to advance public safety rather than criminal investigations, which are explicitly intended to apply universally, without a warrant, and without individualized suspicion.
The second bit of background you should have is 49 USC 44925, which mandates that the TSA research and deploy advanced screening technology, specifically to detect nonmetallic objects. I'm no lawyer, but I do enjoy reading SCOTUS civil liberties opinions, and by and large the court seems to give deference to the legislature when no clear constitutional issue is at stake. In sum: the court has an "out" here, which is "the intent to search passengers is already constitutional, so if this variant of the search is so bad, pass a law".
The Supreme Court has not outlawed strip searches (obviously they can't, as virtually everyone who gets arrested and booked is strip searched, guilty or not). If you read the Savana Redding opinion (8-1 "it's unconstitutional to strip search an 8th grade girl for ibuprofen"), you'll see things like "Its indignity does not outlaw the search, but it does implicate the rule that "the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’". That is, unfortunately, not a hard case for TSA to make. The fact that the Savana search was for "nondangerous contraband" also factored into the opinion.
(If you want to throw up in your mouth a little bit, track down Clarence Thomas' dissent which argued that it is indeed constitutional to strip search a 13 year old girl in school to track down Advil.)
Finally, the arguments EPIC makes here do not seem awesome. Part of their argument turns on administrative rulemaking procedures at TSA, which TSA seems to dismantle efficiently in their response. Other parts drag in things like the Religious Freedom Restoration Act, which is (a) a longshot argument for petitioners who can claim no personal religions infringed on and (b) is neatly sidestepped by the TSA "opt-out" rule. Speaking of opt-out: EPIC claims that there is no effective opt-out procedure, which is also a hard argument to defend without an example of someone refused an opt-out. And on this janky scaffold of arguments, EPIC wants an emergency injunction against the scanners?
Don't get me wrong, I'm obviously in their corner on this. I'm thrilled if they win. And they've got some painful evidence, such as FOIA docs showing TSA required machines with store/transmit capabilities (oops!). But my guess is that if we want to get rid of the strip search machines, we're going to have to do it by voting out the people who approved them.