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X-Ray Body Scans, Inmate Visits, and the Fourth Amendment:
Back in late August, a federal court in Illinois handed down an interesting opinion on the Fourth Amendment implications of X-ray body scans, 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). Indeed, it seems that in her later visits, Zboralski was told that she could only enter the facility if she agreed to an X-ray body scan.

  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:


  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.

Oren:
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?

Having passed through one every day for a while (Hanford nuclear facility), they became quite routine to me -- much moreso than a pat-down. Then again, I attended an undergraduate college where running around naked was not considered unusual (on the weekends, at any rate), so perhaps my views are not exactly "reasonable" in the sense of mainstream.

Objectively speaking though, the sort of information derived is much more detailed than a patdown so it merits additional scrutiny (by tenuous analogy with Kyllo). If an effectively nude image of a person is considered within REP, then the Kyllo analogy holds.
11.17.2008 4:20pm
AntonK (mail):
Kewl! It's like those 3-D glasses that used to be advertised in comic books.
11.17.2008 4:34pm
PatHMV (mail) (www):
Additionally, I understand that new programming for the machines is available which essentially blurs out details of the breasts and genital area before the image is viewed by any human being. This may make the analogous question whether this is more like a requirement to expose, say, the stomach by lifting up a shirt (to below the breast level) or to lifting up a pants leg to reveal the shin, rather than a full-fledged strip-search.
11.17.2008 4:36pm
Bill Sommerfeld (www):
I don't think it's possible to come up a single ordering of the intrusiveness of the body scanner relative to other forms of search; different people will have different senses of what constitutes an unreasonable intrusion of their personal body privacy.

I do have a suggestion:

When offering someone a choice between a patdown and a body scan, the person offering the choice should offer to show a sample image or two of a person of the same gender as the person offered the choice.
11.17.2008 4:37pm
Kazinski:
Ask Zoboralski, after all she objected to the pat down because she thought the gaurd was feeling her up, and then she objected to the body scan because she thought they were looking at her naked, which one does she think was more intrusive?

On the other hand you could ask the guard, which did he enjoy more feeling her up, or seeing her naked.

Both are resonable grounds for a decision.
11.17.2008 4:42pm
Skorri:
This seems so dependent upon extreme variations in modesty/privacy norms among U.S. citizens, since there hasn't been enough time to develop a cultural standard reaction to it. The court's clearly right, a lot more fact finding is needed, but even with that evidence, the conclusion seems likely to be that for some people, this is a much less invasive search than is a pat-down, while for others its the opposite. And if you add religious norms into it, it gets that much more complicated.

Are there any other examples where the degree of invasiveness of a search depends upon the subject's knowledge of what the search is capable of? To think of an offhand, madeup example... Might it be comparable to someone consenting to having a package containing a bomb searched by a drug sniffing dog, unaware the dog can also sniff for explosives?
11.17.2008 4:58pm
Dilan Esper (mail) (www):
I have seen an image of a female Department of Homeland Security official demonstrating the technology (which is used airports). Here's the image.

Personally, I think it's fairly graphic, especially with respect to a woman. (You can certainly see the form of her breasts quite well.)

On the other hand, as someone who was in the Post-Conviction Justice Project in law school, visited several clients in prisons, handled some prison disciplinary matters, and toured some prisons, I am VERY respectful of prison security issues. So I really don't know how to come out on this one.
11.17.2008 4:59pm
newly minted female attorney:
I suppose my initial, visceral response to the scanner is rooted in my suspicion that the guards may not attempt to view the scanned images for potential threats but instead will view them with more prurient motives. After all, it's nice to believe that security guards at prisons are high-minded about security, but when a female attorney visiting a client—i.e., someone unlikely to bring contraband in—comes through, perhaps security won't be the first thing on the guards' minds?
11.17.2008 5:04pm
mlstx (mail):
We always have a lively discussion in my Crim Pro class when I describe this technology. I typically find a gender split in opinions of how invasive it is, with women quite likely to find it very intrusive. How does that play into the reasonable person analysis?
11.17.2008 5:12pm
TerrencePhilip:
newly minted female attorney,

have you SEEN some of the people who go in and out of prison on business or to visit inmates? There are vanishingly few that anyone would want to picture naked. I hear you on your concern but I think that would be much more likely in an airport. Perhaps there are ways, however imperfect, to monitor people using this kind of technology to make it less likely they will view these exposures for prurient interests.

If the facility in question were a maximum-security prison environment I'd be very inclined to the government view. However this woman's husband is simply civilly committed and I'm not sure how they evaluate his level of dangerousness, or how big a problem contraband is, or whether he has a history of getting his hands on contraband. That would also make a big difference in how I saw the case.
11.17.2008 5:13pm
John A. Fleming (mail):
The raw images are a stripsearch, since they are functionally identical. Just look at them. Duh.

However, by examining the image characteristics of the raw images provided here, there ls little reason for an operator to view the raw images. Hard metallic objects show up as either deep absorbtion blobs (under armpit, heat in leg holster) or sharp edges (belt buckle). Biological tissue has a narrow range of pixel values, even at flesh-on-flesh contact boundaries.

Any competent image processing engineer design a set of edge detection and histogram filtering algorithms, subtract out everything but the non-biological edges and deep absorptions, and overlay these on a stylized body outline. The software would then alarm the operator when the absorption areas and edge sharpness exceeds a threshold. If that threshold is reached, the operator could then ask for a pat down or strip search of the suspect area. Viewing the raw images without this threshold being reached would constitute an unlawful strip search. The raw images would only be saved for viewing and evidence if the threshold is reached.

I suspect the reason the raw images are used now is that it's better to get the product in to the hands of the users, than delay it while the image filtering software is being written and tested. Software of this type would have to go through all sorts of susceptibility testing to minimize a false negative. So we use the pattern-matching capabilities of experienced human operators.
11.17.2008 5:16pm
Elliot123 (mail):
"Additionally, I understand that new programming for the machines is available which essentially blurs out details of the breasts and genital area before the image is viewed by any human being. "

So, do I tape the gun in my crotch?
11.17.2008 5:19pm
theobromophile (www):
From a constitutional perspective, there is nothing requiring a same-sex pat-down, but that would certainly be a sensible move that would alleviate some of the intrusiveness associated with pat-downs.

As a random question, what happens to these images? Can they be stored? At least with a pat-down, you can be certain that the creep can't keep patting you down. If these images can be stored, then security personnel could make their own 21st century, DIY porn.

No sense of the Constitutionality of this, because it seems as if what many normal people would consider to be private is not so considered by the Supreme Court, but I think it's a horrible idea. Blurring the genitals doesn't do much to help - I personally would not want to expose my stomach, thighs, and hips for a guard who thinks I'm a security risk. There's a reason why I don't prance through airport security in a string bikini, and it has to do with that privacy thing.

Furthermore, absent a true consensus on this, I dislike the idea of allowing the less-reserved among us to impose their morality (which it really is, in a way) on the prudish in the world. To some of us, this would be a horrible invasion that would be a deal-breaker for air travel, entrance into secured facilities, etc.; to others, it's not a big deal.
11.17.2008 5:20pm
OrinKerr:
John A. Fleming writes:
The raw images are a stripsearch, since they are functionally identical. Just look at them. Duh.
Do you feel the same way after watching this video on how strip searches should be conducted?
11.17.2008 5:21pm
OrinKerr:
Oh, and to answer a question that came up above, the pat down that Zboralski objected to was performed by a female guard.
11.17.2008 5:22pm
Dilan Esper (mail) (www):
From a constitutional perspective, there is nothing requiring a same-sex pat-down

But cf. Jordan v. Gardner.
11.17.2008 5:22pm
MisterBigTop:
I'm not sure I'm that concerned about the prurient potential here. It's hard for me to imagine how one could look at even, say, a scan of an abercrombie model and be turned on. If you look at the sample image posted, the figure barely looks humanoid. No one looks good that way. I understand that there are those with voyeur problems, but I think they'd be more likely to continue peaking in windows than signing up for a job where you don't get to see hardly anything.

As for privacy concerns, that's a bit more difficult. My hunch is that this is a bit closer to a strip search than a patdown, but perhaps my views aren't mainstream. It doesn't seem as "humiliating" to me as getting naked in front of an officer. For whatever reason, the machine adds some separation there that makes it seem more pleasant.
11.17.2008 5:27pm
Elliot123 (mail):
If it is neither pat down nor strip search, why pretend it is either?
11.17.2008 5:34pm
Lou Wainwright (mail):
As John Fleming notes, imaging processing on these systems can be, and is, used to focus the attention on threats, rather than details of the body.

This page shows some examples of scans with image processing enabled, and in particular, this image shows what a person looks like with a gun and some other potential threats.

Airports in the US that are testing this technology, which I view as much less intrusive than a pat down, all have some degree of privacy filtering enabled. For added privacy the operator viewing the image is isolated from seeing the passenger being scanned, so there is no relating the image to the passenger.
11.17.2008 5:43pm
theobromophile (www):
Dilan,

Don't you mean "cf," not "But cf"? If you are referring to the Ninth Circuit case, the majority upheld the use of mandatory cross-gender searches at a prison. (I use the term "searches" because, apparently, it involved squeezing the crotch area and flattening the breasts, which is far more intrusive than a pat-down.)
11.17.2008 5:50pm
Holly:
I'm a woman that people probably wouldn't mind seeing naked, but the level of resolution on those body scans don't really bother me. Frankly, the basics of my breast outline are already on view in most casual clothes, so I don't see much additional shown in the body x-ray. Men, however, have their genitals (a usually well-covered and undefined body part) outlined middlingly well, which may concern them.
11.17.2008 5:51pm
JA:
First, I'd like to note that there are alternative technologies out there which one way or another minimize the level of detail around sensitive areas.

Secondly, I agree with Prof. Kerr that this is a tough issue. There's a case in Tennessee where the "pat down" included "running two fingers, with pressure, up the inner thigh to the genitals." This is not a strip search, the statutory definition of strip search being "having an arrested person remove or arrange some or all of the person's clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of the arrested person." Seems to me the X-Ray isn't as invasive as the complete pat-down administered in my example, and far from being as invasive as a strip search.

I'm a dude, so I could be wrong about it not being as invasive as a complete pat-down. However, dude or no, I can't imagine how anybody could think a form-exposing X-Ray is as invasive as a strip search.

Also, and in addition to the privacy issue, I wonder how much depends on the capacity for abuse. It's easy to see how strip searches could be abused without the stronger standard -- it could be used to humiliate, or in retaliation, or targeted at young women, etc. But it's not clear, at least to me, how this image can be abused. Especially -- and I believe this to be the case -- the images cannot be saved or transported.
11.17.2008 5:53pm
Realist Liberal:

If it is neither pat down nor strip search, why pretend it is either?


Because for hundreds of years the law has developed by analogy.

FWIW, I wonder if the procedures used could change how it is classified. For example, the TSA website talks about the possibility of remote viewing so the person looking at the picture never sees the person's face and vice versa. Is this any different for 4th Amendment purposes than if the monitor was right next to the person being scanned? I agree that this is a tough issue and it's nice to see a judge not making a knee-jerk reaction to changing technology.
11.17.2008 6:12pm
Dilan Esper (mail) (www):
theobrom:

It's a "but cf." because in fact, the Court indicated that a same-sex requirement would depend on the circumstances. Thus, claiming that there is never a constitutional problem with opposite sex pat-down searches is a little farther than I would say is supported by the caselaw.
11.17.2008 6:13pm
Oren:

Men, however, have their genitals (a usually well-covered and undefined body part) outlined middlingly well, which may concern them.

I'm probably atypical but it really doesn't bother me. Especially in the context of a screener that will likely see hundreds of these images a day.
11.17.2008 6:24pm
Dr. T (mail) (www):
Pat down: You get touched and the examiner can grope you.
Strip search: You have to disrobe, and the examiner sees your naked body.
Rapiscan: The examiner sees an image of your naked body.

In my opinion, the Rapiscan is similar to a strip search but not as bad (from an embarrassment aspect).

I don't see how the woman has a case. She's visiting a prison and gets direct contact with her husband. The only way that can be done securely is to search her. If she doesn't want to be searched, then her visits should be no-contact.
11.17.2008 6:25pm
Optics Engineer (mail):
Also, be aware that the sample images shown above are already outdated. Current and near-term technology offer increasingly better resolution - already to a body hair - and better coloration / color matching (tattoos in particular can be depicted). Hopefully anonymizing/blurring technology will equally advance. However, I think many people will be given more pause by the idea, in five years, of a full-color, High-Def, zoomable image of them in the buff available to security personnel, even with a blur in the right places.
11.17.2008 6:26pm
Oren:

The only way that can be done securely is to search her. If she doesn't want to be searched, then her visits should be no-contact.

The question is not whether to search her, it's the extent permissible for that search.
11.17.2008 6:35pm
SecondAmendmentSister:
How would a covered Muslim woman be treated?
11.17.2008 6:58pm
Bob_R (mail):
Just a personal reaction to the description of the procedure, but I think it would be less intrusive than either the pat down or the strip search. I would think that submitting to have my body touched or being forced to disrobe would put me in a more subservient and submissive position than standing in front of a scanner. I might even rate it less intrusive than emptying my pockets and removing my shoes.

Seems like a sensible decision by Judge Moran.
11.17.2008 8:47pm
einhverfr (mail) (www):
I think the judge got it basically right here. Furthermore, there is a genuine question as to how the operation was conducted.

For example, I would think that if she was told that it was only going to be on outline settings, and they upgraded it, that might be clearly unreasonable.... And the allegation that images were printed makes me more concerned.
11.17.2008 8:52pm
Ricardo (mail):
There's clearly no direct comparison between the scanner and a pat-down search. In a pat-down search, security personnel touch but do not see while with the scanner the personnel see but don't touch. Some people are more comfortable having their bodies seen than touched while others are the opposite. I don't think there is any way to say for sure it's more or less intrusive than a pat-down.

I'm not than in tune with the state of law on privacy and searches in general but I think it's important to think about how this technology may be applied in the future. For instance, I've spent a lot of time living in various Asian countries where it is routine to submit to a pat-down search when entering not only airports but also shopping malls, movie theaters, department stores, office buildings and even before boarding a bus sometimes. In the U.S., I think few people would want to reach the point that these body scans are as common as this.

It's good that the court agreed that it is a violation of one's expectation of privacy. I think some people have an attitude that since they don't see the officer looking at the images that it is not embarrassing or intrusive but we ought to think about what lies at the bottom of that slippery slope.
11.17.2008 9:30pm
Elliot123 (mail):
"How would a covered Muslim woman be treated?"

In Saudi Arabian airports and border checks they all go to a closed room where a policewoman conducts whatever type of search she chooses. Usually they just uncover their faces so the passport picture can be compared, however it can go all the way to a cavity search if they choose.
11.17.2008 10:09pm
theobromophile (www):
Dilan, I think we crossed wires. I meant that there is nothing that, in all situations, requires a same-sex patdown.

Back to the actual issue: for many people (most of the men here and Holly) this would not be a problem. If we were to derive the contours of the Constitution from what "most people" or a sizeable minority do not mind, then, we would only restrict government action that is totally offensive to the large majority of the population. There are a great many people who would not mind losing the right to swear at politicians or old ladies, but that doesn't mean that we would redefine the First Amendment to remove those rights. This becomes even more - not less - important in the Fourth Amendment context, when you are dealing with someone's bodily integrity.

As SecondAmendmentSister asked, what about Muslim women? I'll add to this: what about young women - girls who are just past puberty and embarrassed about their bodies and thoroughly modest? What about women recovering from anorexia, who have endangered their lives because of their perceptions of what people think of their bodies? Women who have been sexually abused, raped, or otherwise exploited? People with Crohn's try to keep their digestive sacs private; to them, this technology would be very intrusive. Of course, there's also plain old prudes like me, who dress like repressed librarians for a reason.

Query whether we really want to set up a system that is fine with some people, all degrees of upsetting to others, and horrific for some of the weakest and most downtrodden among us - then go and justify it on the grounds that the more traditionally privileged (men, as per above, seem to have fewer problems with this) don't seem to have a problem.
11.17.2008 10:20pm
David Chesler (mail) (www):
same-sex pat-down

I've asked this before, but I don't get why that's always a good thing.

I'm a dude, and I'd rather be touched by a woman than another dude. If it's not sexual, it shouldn't matter; if it's sexual, well it shouldn't be a requirement to get into most places (what, that I'm not licensed to carry, are you worried that I might be carrying, that it's worth getting sexual with me over?) but I prefer to have sexual contact with members of the opposite sex.
11.17.2008 10:29pm
Anderson (mail):
Men, however, have their genitals (a usually well-covered and undefined body part) outlined middlingly well, which may concern them.

I would just be concerned about hurting the male guards' feelings, myself. Badda-BING!

Given that a pat-down is legal, and the plaintiff objected to a pat-down, it seems to me that she's not entitled to anything *less* intrusive. And frankly, a pat-down would be a lot more potentially sexy than these weird graphics.
11.17.2008 10:37pm
whit:
in this age of same sex this and that, i find it kind of amusing that same sex patdowns are so preferred.

my agency's policy (which is consistent with other agencies i know of, is that pat searches in the field are fine in regards to opposite sex, as long as there is not an officer available at the scene, of the same sex, to conduct the pat down. that seems reasonable GIVEN the presumption that same sex searches are somehow less offensive.

i agree with the above poster, that personally, i prefer to be touched (patdown, massage or whatever) by a female (i'm a male) vs. a male.

but if the issue is gratification by the "patter", it is entirely possible that a same sex patter happens to be gay and/or an opposite sex patter happens to be gay, too.
11.17.2008 11:16pm
theobromophile (www):
If you want to make air travel more pleasant, you could require TSA to hire only super-hot people (of both sexes) to perform the pat-downs; the beleaguered traveler could choose the pat-down-er. (Had government not been involved in all of this, some capitalist would have seized this opportunity long ere now.)

From a woman's perspective: I think it's less likely that a woman would try to feel me up while patting me down. Even if she does try it, it's a lot less weird than having a man do the same thing. I've been groped by both men and women, and it's always a LOT more weird (and scary - perhaps that's the issue) when men are doing the groping. With women, it's vaguely amusing.
11.17.2008 11:34pm
jccamp (mail):
Here's how it was supposed to work..."The Rapiscan generally requires two people to operate. This is because the person inspecting the images is not supposed to see the search subject in person or know who is being searched, and the person interacting with the search subject is not supposed to be viewing the images. Rapiscan operators are advised to set up the machine in such a way as to provide this level of privacy for the search
subject. The Rapiscan is capable of displaying images with varying degrees of
accuracy, from images that look like black-and -white photos of a subject's body to images that include wrinkles and skin-folds. Any person viewing the displayed images can manually enhance them by adjusting the contrast, brightness, or by choosing other enhancement features. The Rapiscan has an attached printer that can produce printed copies of the scanned images of search subjects.
"
The plaintiff claimed that photos of her from the machine were possibly printed.
Were the procedures followed, wouldn't this matter, in terms of plaintiff's claim that her privacy was violated, since the sole person seeing the scan would have been unable to connect the scan with a real person?
11.17.2008 11:53pm
Ricardo (mail):
From a woman's perspective: I think it's less likely that a woman would try to feel me up while patting me down. Even if she does try it, it's a lot less weird than having a man do the same thing. I've been groped by both men and women, and it's always a LOT more weird (and scary - perhaps that's the issue) when men are doing the groping. With women, it's vaguely amusing.

As a guy, this is my perspective as well. I don't particularly care whether a man or woman does a pat-down search on me but that's because I'm a guy. I don't think men should be able to pat-down a woman unless under special circumstances. Men are more likely to abuse their powers for prurient interests and more likely to be physically intimidating.

The law does get into some pretty interesting and awkward places when it tries to take equality of the sexes too far. Amnesty International, for instance, criticized the U.S. for allowing men to work as guards in female prisons since there were so many allegations of sexual abuse of inmates. I don't think there are similar problems with women working in men's prisons.
11.17.2008 11:55pm
Oren:

The Rapiscan has an attached printer that can produce printed copies of the scanned images of search subjects.

Holy jesus for god's sake why? Whoever designed this thing to even have the possibility to printing is a damned fool.
11.18.2008 12:05am
theobromophile (www):
Were the procedures followed, wouldn't this matter, in terms of plaintiff's claim that her privacy was violated, since the sole person seeing the scan would have been unable to connect the scan with a real person?

Frankly, I've never understood that line of reasoning. Imagine if a person were to take photos up women's skirts, surreptitiously, and, without himself looking at the photos, post them on the internet or send them to all of his friends. According to the "if you don't know who it is, she can't be upset" logic, there would be no moral problem with such behaviour.

It seems to be a terribly passive and reactionary way of considering the right to bodily integrity - as if it's totally okay for people to see you naked, against your wishes, so long as they can't attach a face to it. That presupposes that the core of the violation is in the connection of the nude body to the face (or the persona), not in the fact that it was exposed against her wishes.
11.18.2008 12:25am
Brian K (mail):
Furthermore, absent a true consensus on this, I dislike the idea of allowing the less-reserved among us to impose their morality (which it really is, in a way) on the prudish in the world.

i dislike the idea of allowing the prudish among us to impose their morality on the less reserved. but that's never stopped them before (e.g. porn)
11.18.2008 12:41am
ewannama (mail):
I may have a high embarrassment threshold because of military training, but it seems the concerns are overblown.

Regarding the potential for ogling, others have already addressed the volume of images most security personnel would have to look at a day. And complaints lodged for unprofessional comments would further reduce abuses of a useful tool.

Regarding the concern for amateur porn/saved images, the same thing goes for a cure by management and grievance system. And real porn is widely available and much more likely to satisfy a creepy pervert.

If people abuse hammers, we don't stop proper use of hammers. These scanners look like a great security tool. Investigate improper use.

Some people do place a greater value on privacy, but in areas which pose obvious security problems, those expectations are either unreasonable (or will be considered to be so after the next big security snafu).

Yeah, I'm an insensitive man, but really--this is no longer recess teasing at the school yard--get over it.
11.18.2008 1:33am
jonzyx (mail):
I would assume that the reason it has a printer attached is to print a copy if an issue arises. That way if someone down the line wants to know why you started screaming, you can show them the printout of a grenade clenched between the visitor's buttocks. Plus, you could then make a fortune selling said picture to late night shows etc.
11.18.2008 1:41am
aces:

Amnesty International, for instance, criticized the U.S. for allowing men to work as guards in female prisons since there were so many allegations of sexual abuse of inmates. I don't think there are similar problems with women working in men's prisons.



Actually, there have been.
11.18.2008 7:37am
Milhouse (www):
OrinKerr wrote:

Do you feel the same way after watching this video on how strip searches should be conducted?

Woof! Either of those two are welcome to search me any time they like :-)
11.18.2008 7:42am
Mikeyes (mail):
If this woman was subjected to multiple X-ray searches, I would think that she would be more concerned about health issues and possible birth defects (assuming she was of child bearing age.) I don't know the amount of radiation that these machines produce, but total body scans are not trivial. Did she have a radiation badge and are there standards for such in these kinds of serial searches? I'll bet there is some OSHA rule about this machine for both the searchers and searchees.

Was this not a concern in addition to the Fourth Amendment issue?
11.18.2008 10:30am
Mikeyes (mail):
Here is the answer to my own question from Health Physic concerning backscatter X-ray technology:

"The Health Physics Society (HPS) reports that a person undergoing a backscatter scan receives approximately 0.005 millirems of radiation; American Science and Engineering Inc. reports 0.009 mrems. [3] According to U.S. regulatory agencies, "1 mrem per year is a negligible dose of radiation, and 25 mrem per year from a single source is the upper limit of safe radiation exposure."[3]."
11.18.2008 10:45am
whit:

As a guy, this is my perspective as well. I don't particularly care whether a man or woman does a pat-down search on me but that's because I'm a guy. I don't think men should be able to pat-down a woman unless under special circumstances. Men are more likely to abuse their powers for prurient interests and more likely to be physically intimidating.



interesting double standard. the law should be gender neutral PERIOD. culture - should not be imo. and that doesn't run afoul of equal protection, etc.

assume for the sake of argument that men ARE more likely to abuse their powers for prurient interests, what if a certain race or ethnicity was shown to have the same proclivity? or a certain age group? (all pat downs must be done by post - menopausal women!).

sorry. doesn't fly.


I've been groped by both men and women, and it's always a LOT more weird (and scary - perhaps that's the issue) when men are doing the groping. With women, it's vaguely amusing.



that may be your experience. assuming others feel that way is a BIG assumption. i know a female officer who was groped by another female officer, and it was extremely scary and terrible for her. i never once heard her say it would have been worse if it had been a man. also, would the dept. have taken her complaint more seriously if it was a guy who did it? probably, but unprovable. i do know that many in her dept. have the same attitude you do, that a female (or presumably a male) being groped by a female is much less serious than when there is a male groper.
11.18.2008 2:52pm
Gilbert (mail):
Under the recent cases (Kyllo, Caballes, Knotts) if rapiscan discloses the contours of a person's body (maybe) or any non-contraband object (definitely) it is a search. If he was allowed to do a pat down anyway, the search has to be conducted on that basis (for weapons only). If we want to define an exception it has to follow the automobile analysis (justified at the inception and limited in scope to that purpose).

For my part, I don't doubt it's a search, and I highly doubt it is sufficiently narrowly targeted to fit into Caballes or Knotts, and too fundamental for a warrant exception.

Although, the police already think they can search you for whatever on probable cause, and I would imagine more than one or two judges would want that to be the rule too. Damn judicial activism.
11.18.2008 11:20pm
Thaddeus Mason Pope (mail):
One of my first research and writing projects, during my time as a student as Georgetown Law, was with Professor Paul Rothstein. We addressed legal issues pertaining to this very technology that the FAA was considering for airports.

See Chapter 7 of Airline Passenger Security Screening (Nat. Acad. Sciences 1996), http://www.nap.edu/openbook.php?isbn=0309054397
11.21.2008 9:01pm