Alternative Imaging Technology: How to Protect Your Child from Unreasonable Intrusions by the Transportation Security Administration

Amber D. Reece, SMU Dedman School of Law

Abstract

Airline security is more important than ever in preventing terrorist attacks in the United States. Because “[e]ven the best intelligence . . . does not always identify in advance every individual who would seek to do us harm,” Americans rely on the government to prevent terrorism by overseeing airline safety. Passengers on commercial airline flights are required to submit to searches as a condition of boarding despite the Fourth Amendment implications. The Transportation Security Administration (TSA), the agency charged with airport security in the wake of the attacks of September 11, 2001, believes that “effective technology . . . is an essential component of our arsenal to detect and deter threats against our nation’s transportation systems” and is using new equipment, Advanced Imaging Technology (AIT), to screen passengers before boarding planes.

The question remains whether the current AIT utilization policy will be upheld under constitutional scrutiny in the courts. Children are subject to the same screening techniques as adults at airports and may be selected by an agent, either randomly or after failing a primary screening, to undergo imaging or a pat-down before boarding a plane. Parents who do not wish the TSA to subject their child to AIT or a pat-down may not be able to refuse consent to the additional screening. Yet many parents have strong reservations about allowing an agent to search their child in this manner. In fact, concerns over the images produced by AIT scanners in Britain caused a temporary ban on screening minors to prevent the creation of child pornography under that nation’s laws by airport personnel. Although courts have recognized that the government may abridge children’s constitutional rights in certain contexts, “[a] child, merely on account of his minority, is not beyond the protection of the Constitution.” While adults can choose (1) whether to fly and be subject to security screenings or (2) whether to walk through an AIT scanner or submit to a pat down, that decision may not be as easy for minors or their parents.