The United States Court of Appeals for the District of Columbia Circuit just upheld TSA’s new screening measures in a unanimous decision:
As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. An administrative search does not require individualized suspicion. Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
As Orin Kerr points out, this decision comes from a “pretty Fourth-Amendment-rights-friendly panel.” Judge Douglas Ginsburg is a deeply radical libertarian who once called for a return to a Great Depression-era understanding of the Constitution, but he is also a fairly consistent libertarian who is skeptical of intrusive searches and seizures. Judge David Tatel is one of the federal bench’s leading progressive thinkers. When he was younger, he was considered a likely candidate for promotion to the Supreme Court in a Democratic administration, and his clerks routinely go only to clerk for a justice.
In other words, if this panel would uphold TSA’s practices, it is very unlikely that their decision will be contradicted by a higher authority.