June 30, 2008

By Natalia Ippolito

The Fourth Amendment to the Constitution protects Americans from unreasonable searches and seizures without a warrant. But according to the Department of Homeland Security, you surrender your Fourth Amendment rights when either of two situations occurs:

• You hand over your bag to an airline or Transportation Security Administration employee, or

• You walk through the metal detector at a TSA checkpoint.

In either case, your consent to be searched is implied, and you are in the hands, and at the mercy, of the federal government.

Thus, agents may conduct any method of primary or secondary screening allowed by federal guidelines. You have the right to ask for a private screening at any time during the screening process or to sit down if you cannot stand.

Recently, I've been getting questions about passenger rights relating to two whole-body imaging technologies: the Backscatter and Millimeter Wave machines. Passengers want to know if they are required to pass through these detectors or if can they decline.

My answer is that they do have a choice. Even before these technologies were introduced, the TSA always had an alternative screening method available, and it still does.

The TSA has implemented the whole-body imaging technologies in primary and secondary screening because the Backscatter and Millimeter Wave are effective means of detecting weapons, liquid explosives and other threatening items concealed under layers of clothing. They do so without physical contact and within a matter of seconds.

Currently, the Backscatter is being used for secondary screening in lieu of a pat-down. The Millimeter Wave is being used in primary screening in addition to the walk-through metal detector. Both are being tested in pilot programs at several airports.

Privacy advocates have raised concerns about the scanned images produced by both technologies. However, the TSA is working to rectify that problem by ensuring that, once viewed, the images will be deleted immediately and will never be stored, transmitted or printed.

If you are concerned about either device, there is one question you need to ask TSA agents when you arrive at security checkpoints: Is the Backscatter or Millimeter Wave in the pilot phase at this airport?

If a technology is in the pilot phase, it's offered on a voluntary basis, and it's an alternative to the traditional pat-down.

If it's not in the pilot phase, then be forewarned that if you decline, you will undergo additional screening employing another screening method, which probably will include a full-body pat-down.

According to a TSA spokesman, 90% of the passengers at Phoenix Sky Harbor Airport, one of the pilot sites, prefer the Backscatter to a pat-down. However, it has not been determined how passenger-imaging technology will be used in the future. If you feel that this type of technology is violating your privacy, opt for a full-body pat-down.

In addition to whole-body imaging machines, the TSA is also testing a so-called "trace portal" technology popularly known as the Puffer.

The Puffer is different from the other whole-body technologies in that it does not produce an image; instead, it blows air on you, then analyzes it for traces of explosives.

Though the Puffer is still in pilot testing, it has already engendered a popular myth: that it blows air up women's legs, raising skirts and dresses a la Marilyn Monroe on a sidewalk air vent.

I recently went through the Puffer, and I can promise that your skirt or dress will not fly up, for the simple reason that there are no holes at the bottom of the Puffer to direct air upward. The holes are located only on the sides and blow air across your body and clothing.

As is the case with the whole-body imaging machines, the Puffer is still in the pilot phase at most airports, so the TSA does not yet require you to pass through it.

You can always refuse to be screened by any technology, but keep in mind that if the technology is not in the pilot phase, you will be screened by another method.

Ask what your choices are, then make your own decision. If at all possible, don't let the TSA make it for you.

Happy and safe travels!

Natalia Ippolito, a former TSA officer and now a passenger advocate, is the author of "I Might as Well Be Naked! -- How to Survive Airport Screening With Your Clothes On" [Divineisland Books, 2007]. Contact her at www.airportbook.com/contact.htm.