In the three weeks since the Transportation Security Administration began more aggressive pat downs of passengers at airport security checkpoints, traveler complaints have poured in.
Some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerless and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.
“I didn’t really expect her to touch my vagina through my pants,” said Kaya McLaren, an elementary schoolteacher from Cle Elum, Wash., who received a pat down at Dallas-Fort Worth International Airport on Saturday because the body scanner detected a tissue and a hair band in her pocket.
The Transportation agency has so far responded to the complaints by calling for cooperation and patience from passengers, citing polls showing broad support for the full-body scanning machines.
Still, it remains to be seen whether travelers approve of the pat downs, especially as millions more people experience them for the first time during the holiday travel season.
“I would be very surprised if the average American would say this is OK after going through the kind of experience we’re hearing about,” said Jay Stanley, a senior policy analyst with the American Civil Liberties Union, which has received nearly 400 complaints from travelers.
Critics also question whether the pat downs will survive legal scrutiny. On Tuesday, two pilots filed a lawsuit against the Department of Homeland Security and the TSA, claiming that the new screening procedures violate Fourth Amendment rights against unreasonable search and seizure. But legal experts are divided over whether the courts will find the searches reasonable.
“For Fourth Amendment purposes, you can’t touch somebody like this unless you’re checking them into a jail or you’ve got reasonable suspicion that they’ve got a gun,” said John Wesley Hall, a criminal defense attorney who specializes in search and seizure law.
“Here there is no reasonable suspicion,” he said. “It’s the pure act of getting on a plane.”
But Orin S. Kerr, a law professor at George Washington University, said the courts have generally supported the government’s claims in cases involving airport screening, although new cases would have to balance the more invasive nature of current search procedures with the government’s security needs.
“Reasonableness is a murky standard, so there’s room for a new legal challenge,” Kerr said. “But the tenor of earlier cases is pretty deferential to the government.”
The Electronic Privacy Information Center has also filed suit against the Department of Homeland Security, arguing that the body scanners violate Fourth Amendment protections as well as other federal laws. The group is weighing how to respond to the pat downs, calling for a stronger response from the government to passenger concerns.