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Are TSA pat-downs and full-body scans unconstitutional?

The TSA says the pat-downs and full body scans are necessary to keep airliners safe. But critics ask if such intimate searches violate the Fourth Amendment.

In this Sept. 1 photo, Transportation Security Administration employee Anthony Brock (l.) demonstrates a new full-body scanner at San Diego's Lindbergh Field, with TSA employee Andres Lozano in San Diego.

Eduardo Contreras/San Diego Union Tribune/AP

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As the debate about the Transportation Security Administration’s screening procedures pings across the Internet, a growing chorus of critics is asserting that electronic imaging scans and “enhanced pat-downs” both represent an unconstitutional violation of the Fourth Amendment, which protects against unreasonable searches.

“Enough is enough. I should not have to submit to a digital strip search or being groped by a glorified security guard," writes commenter vrwc1 in a typical post on cnet.com. "This is the largest violation of personal privacy we've ever seen.”

The choice to get on an airplane, the argument goes, is not probable cause for such invasive searches, nor does buying a ticket constitute consent to be subjected to a “virtual strip search” and “groping,” as critics call the two searches.

For the courts, however, it is a matter of balancing personal privacy rights against public safety.

“Are the conditions that you’re consenting to so draconian and so unreasonable that there’s a Fourth Amendment problem?” asks William Schroeder, a professor of law at Southern Illinois University at Carbondale. “I don’t think that argument is going to carry the day, given that people have hidden bombs on their bodies in ways that cannot be found through less invasive searches.”

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