May 15, 2012
Backscatter Technology: The Debate Revealed
On June 24, 2010, senators Amy Klobuchar and Bob Bennett introduced a bill to the Senate called the “Securing Aircraft From Explosives Responsibility: Advanced Imaging Recognition Act,” also known as “SAFER AIR Act of 2010” (Taylor 3). The bill aimed to mandate the use of full-body scanners in airports as the primary method of screening by 2013 (Taylor 3). The passing of this bill threw fuel on an already firey debate as to whether full-body scanners should be the main method of scanning in the United States.
In 2010 and 2011, when Michael Madison Taylor wrote “Bending Broken Rules: The Fourth Amendment Implications Of Full-Body Scanners In Preflight Screening” and William Bradshaw wrote “Borderline: Why The Federal Government May Use Backscatter Technology To Search Vehicles and Containers At International Borders, But The Fourth Amendment May Block Its Use On Persons,” this debate about full-body scanners was beginning to surface in the public. Bradshaw, an attorney with multiple degrees including a Juris Doctor, argues that screening with no suspicion or warrant does not violate Fourth Amendment rights, as long as the search is routine. However, Taylor, a lawyer with the same credentials, disagrees. He believes that the use of full-body scanners should only be used for secondary screening after probable cause is identified. Although these two authors’ positions on the debate appear to be wholly opposed, common ground exists, because they share the idea that full-body scans using backscatter technology should be permitted, but only in a way that uses suspicion as a motive to screen a person.
Both authors share a common concern as to whether the new backscatter scanning technology protects the nation without breaking the citizens’ constitutional right to privacy. Bradshaw argues that in most cases, using backscatter technology does not violate Fourth Amendment rights. In order to support this view, Bradshaw argues that when the United States Custom and Border Protection (CBP) conducts “suspicionless searches of vehicles at the border,” it “does not violate the Fourth Amendment because courts are not required to balance the interest of national security against an individual’s privacy interest in a vehicle” (1393). Furthermore, Bradshaw points out that “CBP’s practice of conducting suspicionless [Backscatter Technology] BT searches of containers at the border” also does not “violate the Fourth Amendment” because “BT searches do not require force, entail no risk, and do not cause harm to the container” (1393). Taylor refutes Bradshaw’s Fourth Amendment argument by saying that protection against unreasonable searches and seizures is “susceptible to erosion” because of the new advances in technology. To illustrate his point, Taylor quotes Justice Scalia, who argued that, “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance in technology” (2).
In addition to their interest in protecting constitutional rights as presented in the Fourth Amendment, both writers also agree that in order to determine whether the new technology violates the Fourth Amendment, which guarantees the right against “unreasonable searches and seizures” of people and property, it is important to look more closely at the search and seizure clause (“Fourth Amendment” 1). Bradshaw writes specifically about the courts’ decision in the question as to whether backscatter searches are routine. He argues that depending on their verdict, these searches could be considered a violation of the Fourth Amendment. He supports this by arguing that because “United States Supreme Court has determined that the Fourth Amendment requires only reasonable suspicion of wrongdoing,” CBP agents would need to establish “a reasonable suspicion of wrongdoing” in order for “BT to fit...
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