Posted by Orin Kerr:
X-Ray Body Scans, Inmate Visits, and the Fourth Amendment:
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1225403185
Back in late August, a federal court in Illinois handed down an
interesting opinion on the Fourth Amendment implications of X-ray body
scans, [1]Zboralski v. Monahan (Moran, J.). The court ultimately
didn't reach a decision, but rather called for more facts. But as far
as I know, this is the very first case on how the Fourth Amendment
applies to X-ray body scans, so I thought I would blog a bit about it.
First, the facts. Zboralski is a frequent visitor to the Illinois
Department of Human Services' Treatment and Detention Facility, where
she visits her husband who has been civilly committed. The facility
has a policy that all visitors must be subject to a patdown to ensure
that the visitors are not bringing drugs or weapons to the individuals
detained.
Zboralski complained that a particular guard repeatedly touched her
inappropriately when she came to visit. A facility employee told
Zboralski that if she didn't want to be patted down, she could be
subject to an X-ray body scan instead. The facility had a Rapiscan
X-ray machine that was purchased to do body scans of inmates in lieu
of strip searches, and the employee offered Zboralski the option of
being scanned instead of patted down.
Zboralski agreed. She was scanned in a number of later visits, as
well, in part because confusion at the facility apparently led to the
guards believing that Zboralski could only be admitted to the facility
if she agreed to a body scan (without the option of a pat down).
It's not totally clear from the opinion, but it looks like the X-ray
body scan is the "Rapiscan Secure 1000," a new x-ray machine that
identifies items underneath a person's clothing or in pockets. I found
a sample image of a person scanned by the machine online, and it looks
like this:
[rapiscan.jpg]
Zboralski went home and researched the machine on the Internet, and
she realized that the facility employees had essentially seen her
naked through the scanning device. She objected to the scanning,
although for a few weeks the guards continued to require her to be
scanned when she visited her husband. Zboralski then sued, claiming
that the scanning as a condition of entering the facility violated her
Fourth Amendment rights.
Notably, it was agreed from the outset that the X-ray body scan was
a search that violated Zboralskis reasonable expectation of privacy.
The question was how invasive a search it was, and therefore what kind
of cause was needed to conduct one as a condition of entrance to a
prison or other place of detention -- rendering the search
constitutionally "reasonable" in that setting. Judge Moran began by
noting that courts have generally held that a physical "pat down"
could be permitted as a condition of entrance to a prison. On the
other hand, courts have held that a strip search is more invasive and
that at least reasonable suspicion is required that the person is
carrying contraband. Judge Moran thus framed the question as being
whether the body scan was more like a patdown or more like a strip
search.
To read the rest of this post, click here.
After comparing the ways on which the X-ray body scan was more like
one or the other, Judge Moran concluded that he (or as he put it,
"we") couldn't reach a decision based on the record:
While the foregoing gives us some basis upon which to rule
regarding reasonableness, we do not believe that it is enough,
given the fact that this issue has never before been addressed.
Several important questions remain that cannot be answered on this
record. For instance, we have very little evidence of how the
Rapiscan actually works and the quality of images it produces.
Examples and experts in the field would be helpful to better
understand body scan technology. We would also appreciate testimony
on how reasonable persons would feel being subjected to such a
scan. Is it psychologically similar to, or even less intrusive than
a pat-down because the person cannot view his or her own image and
no touching is involved? Or is the thought that another person
might be viewing a detailed naked image enough to make a person
feel as violated as they would during a manual strip search?
Finally, we are unsure whether the level of detail affects whether
or not the search is closer to a pat-down or a strip search. Will
every body scan search need to comport with the same standard of
reasonableness regardless of the level of detail in the image? Or
will factual determinations need to be made in each case depending
on how the machine was calibrated at the time of the search? How
was the machine calibrated in this case? We do not have that
evidence. Because we do not believe the record is sufficiently
developed to allow us to rule on this issue of first impression, we
request that a hearing be held and the parties confer so that we
may discuss the logistics of such a hearing.
Very smart move, I think. Judge Moran is showing a sensible caution
in the face of new technologies, for reasons I have explored [2]in
this article. It will be interesting to see what the hearing shows,
and how Judge Moran applies the law when the facts become clearer.
I'm curious, for those of you familiar with this technology, do you
think its use is more like a pat down or a strip search? Based on what
you know, how should Judge Moran rule?
References
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1. http://volokh.com/files/Zboralski.pdf
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421560
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3. file://localhost/var/www/powerblogs/volokh/posts/1225403185.html
4. file://localhost/var/www/powerblogs/volokh/posts/1225403185.html
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