Pat-Downs at Airports Prompt Complaints
Some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness 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 was patted down at Dallas-Fort Worth International Airport last Saturday because the body scanner detected a tissue and a hair band in her pocket.
The 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 O.K. 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 Transportation Security Administration, 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 lawyer 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 had 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,” Professor 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.
“There’s been no meaningful effort in Washington to hear from the American traveling public,” said Marc Rotenberg, president of the privacy center. “So far, Congress has only heard one side of the story — quite literally, they have only heard from the T.S.A.”
In an effort to give travelers more of a voice, groups including the privacy center, the U.S. Travel Association and the American Civil Liberties Union, are soliciting feedback about passengers’ experiences at airport checkpoints, collectively gathering more than 2,000 reports since the new pat-down policy took effect late last month.
“What I’m hearing is some real inconsistency,” said Kate Hanni, executive director of FlyersRights.org, which operates a hot line for passenger complaints. “There seems to be a huge variation in how they’re patting people down.”
Representatives from the various groups say reports about security agents’ behavior run the gamut from respectful and apologetic to aggressive and hostile, with male and female passengers seemingly equally bothered by the searches. Disabled travelers, parents traveling with children, victims of sexual assault and people with medical devices or health issues have expressed concerns about how the new policy affects their ability to fly.
Laura E. Seay, an assistant professor of political science at Morehouse College in Atlanta, said she wore an insulin pump and was disturbed to find that she would have to submit to a pat-down every time she flew because the device showed up on the full-body scanner. After experiencing that physical search for the first time at Washington National Airport, she said she realized that she would have to endure the same thing once a month, because she traveled frequently for work.
“It definitely made me uncomfortable,” she said. “I don’t think anything improper was done, but it’s very invasive and the thought of going through that every time I fly is discouraging.”
Although she submitted a complaint to the T.S.A. in September, she said she had yet to receive a response.
For passengers, one frustration is that the agency, citing security reasons, has declined to release specific guidelines about how the pat-downs are conducted or what agents are permitted to touch. Law-enforcement officials, on the other hand, conduct searches subject to state laws and long-established guidelines after extensive training on what is, and is not, allowed. They are also generally searching only for weapons in a stop-and-frisk encounter.
According to information the T.S.A. has shared or published, the airport pat-downs are supposed to be conducted by officers the same sex as the traveler, and passengers can request a private screening and have a traveling companion present during the search. Agents are not permitted to look inside passengers’ underwear or reach inside a skirt, and children 12 and younger are supposed to receive a modified pat-down.
Even passengers who submit to the new body scanners may be subject to a pat-down if the machine detects an anomaly. In other cases, passengers may be randomly selected for a physical search.
Rather than waiting for a court decision or the T.S.A. to rethink its procedures, some local officials — and passengers — are taking matters into their own hands. On Thursday, New York City Council members called for the city to ban the use of body scanners at city airports. And sites like WeWontFly.com and OptOutDay.com are calling for passenger protests at security checkpoints next Wednesday, the day before Thanksgiving, while other disgruntled travelers are suggesting that men wear kilts or that the boldest passengers strip down to their underwear before entering the security line.
The growing furor, and the divided opinions over a better approach to security, suggest the debate is likely to heat up before anything is resolved.
“There are many people who are in favor of this level of screening and there are many people who are terrified by it,” said Ms. McLaren, the teacher. “But I don’t think we as an American people have reached a consensus on what it is we want.”