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

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'You don't have to fly'

At the heart of the issue is consent, says Professor Schroeder. Have people consented to this search, simply by buying a ticket? "I certainly understand why people are not altogether pleased about it,” says Schroeder, but “you’ve consented. You don’t have to fly – that’s your choice.”

Others, however, suggest that the searches overreach. In order to pass the Supreme Court’s test for constitutionality, searches must balance a “reasonable” amount of privacy invasion against the likelihood of finding evidence of a crime.

RELATED: Number of full-body scanners at US airports to triple in 2010

In other words, it comes down to a cost-benefit analysis.

The "costs" of the scans have been reported from every corner of the Internet. Stories are emerging of TSA officers commenting inappropriately on scans, and of passengers reporting their pat-downs as “sexual assault.”

What is not yet clear are the benefits.

John Pistole, head of the TSA, told a Senate committee Tuesday that pat-down techniques are so thorough that they would have detected the explosives concealed in the underwear of Umar Farouk Abdulmutallab on Christmas Day last year.

“It’s more invasive than I’m used to,” acknowledged Mr. Pistole, when asked by Sen. Byron Dorgan (D) of North Dakota if he had received an enhanced pat-down himself, during a Wednesday morning hearing of the Senate Commerce, Science, Transportation Committee.

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