Invasion of the body searchers

Amy Alkon blogged that the airport pat-down of her was government-sanctioned sexual assault. Photo / Supplied

Amy Alkon was in the United Airlines terminal at Los Angeles International Airport when she had her run-in with the officers who operate electronic body scanners, or conduct hands-on "pat-downs" of passengers about to board flights.

Alkon, a feisty blogger known as The Advice Goddess, is a tall, striking redhead with very fair skin.

Given a family history of melanoma, she is wary of scanners and opted for a pat-down by a US Transportation Security Administration officer.

What happened next was either the basis for a defamation claim against Alkon, or a gross violation of her Fourth Amendment rights against being searched without probable cause - reasonable suspicion you've committed a crime.

Alkon calls the incident "government-sanctioned sexual assault".

She says the TSA agent, Thedala Magee, "groped" her breasts and "touched my most private parts", a claim she detailed on her blog in April.

"She stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. I was shocked."

Alkon yelled at Magee: "You raped me!"

She believes Magee's pat-down was "punitive". After learning that a sexual assault charge was "probably a non-starter", Alkon blogged about the incident and named Magee.

The TSA officer engaged a lawyer, Vicki Roberts, who wrote to Alkon in July to say her claim of rape was false and that Magee - who "followed proper procedure" in Alkon's pat-down - had been defamed.

Roberts demanded a written apology, compensation, and that blog postings be taken down.

"It's a little disconcerting," says Alkon, "to get a letter demanding US$500,000 from someone who stuck her hand up your private parts."

She found a lawyer. "Your client aggressively pushed her fingers into my client's vulva," Marc Randazza wrote in response.

"I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights ... It was absolutely a sexual assault, perpetrated in order to exercise power over the victim."

As the lawyers quibble about what constitutes rape and free speech, the TSA has said the dispute doesn't concern the agency because the pat-down was "handled appropriately".

On the other side of the continent, Aaron Tobey, an architectural student, also experienced problems with the TSA. But this episode may evolve into a legal test case.

Subject to a pat-down at the Richmond, Virginia, airport last December as he waited to board a Wisconsin-bound plane for his grandmother's funeral, Tobey stripped to his running shorts to reveal a message inked on his torso: "Amendment 4: The right of the people to be secure against unreasonable searches and seizures shall not be violated."

Tobey said he was exercising his constitutional rights. Nonetheless, he was handcuffed, subject to 90 minutes of questioning by FBI agents, and issued with a summons for disorderly conduct before being let go.

A few days later a judge dismissed the charge.

But the incident didn't end there. "We shouldn't have to give up our civil liberties [to fly]," said Tobey.

He sued Homeland Security chief Janet Napolitano and TSA head John Pistole, claiming his First and Fourth Amendment rights were infringed.

"On August 30 a federal judge ruled in our favour," says John Whitehead, Tobey's counsel and head of Richmond's Rutherford Institute.

The judge dismissed the case against Napolitano and Pistole, but allowed the suit to proceed against the TSA officer and the police who arrested Tobey.

While Whitehead says the disorderly conduct charge was absurd, the constitutional issues - Tobey's First Amendment right to exercise free speech and expression [the message on his torso] and the Fourth Amendment provision against illegal searches - are real.

"Should the government be able to do this to an American citizen? We're arguing that it's wrong. It violated his constitutional rights."

It is an issue some Americans take very seriously.

"What women object to is the TSA touching their breasts and genital area. Touching of the body. That's what Aaron Tobey objected to. And the use of the full-body scanner, which shows you nude."

He says that scanners don't pick up "what's in body cavities". Could this explain invasive body searches? "In my opinion intrusive searches of women are because they refuse to go through scanners. They're basically punitive."

What makes Tobey's case different, says Whitehead, is that it is the first he knows of that includes the First Amendment argument, a development that may make it a test case to challenge airport security measures.

A tentative trial date is set for January.

"The Obama Justice Department is very aggressive in such cases," says Whitehead. "They don't like them. So they seek dismissal."

To civil libertarians this stance is part of an alarming erosion of constitutional rights dating from the September 11 terrorist attacks and draconian laws like the Patriot Act.

Many passengers take umbrage with the body scanners, with the American Civil Liberties Union receiving around 1800 complains, says legislative counsel Christopher Calabrese. Pilots with FBI clearance fought for, and won, exemption.

"There was significant concern about them [the scanners]," says Calabrese, "because they're naked scanners; you can see through people's clothes. It's a straightforward privacy issue." At the same time, he says, the pat-down process has become "much more invasive", touching breasts, plus genitalia on both sexes. "I call it groping."

He says the TSA has made some changes. The agency has pulled back from invasive pat-downs of children - a notorious March 2009 episode saw a 4-year-old forced to remove his leg braces and struggle unassisted through a metal detector in Philadelphia.

There is a sense the pat-downs, and other intrusive government behaviour, has crept up on both US citizens and visitors, as the US shirks its responsibility to define where the line should be drawn between the government's duty to protect its citizens, and its obligation to respect their constitutional rights.

It is no easy task.

BOMB SCARE THE TRIGGER

The United States authorities began to roll out airport body scanners in 2007, stepping up their policy after the abortive 2009 Christmas Day bombing, when Northwest Airlines passenger Umar Farouk Abdulmutallab failed to detonate a plastic explosive device hidden in his underwear.

Scanners now operate at some 1000 American airports.

Besides privacy and civil rights disputes, passengers fear profiling, radiation risks - especially in infants and pregnant women - and risks to personal data after Florida officials failed to delete 35,000 nude scans.

The TSA says its pat-down procedures, conducted by officers of the same gender as the passenger, date to November last year.

Lisa Farbstein, a TSA spokeswoman, says pat-downs are "not an unreasonable search under the Fourth Amendment" and are "primarily used to resolve alarms that occur at a walk-through metal detector, if a passenger opts out of advanced imaging technology screening or the walk-through metal detector, or if an anomaly is detected".

Passengers can ask for a pat-down in private.

But when Farbstein was asked to outline the pat-down rules - could they probe a passenger's genitals for instance? - she declined to answer as this would supposedly compromise security.

The agency has yet to catch a single airport terrorist.