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Fred H. Cate
Distinguished Professor of Law

Last modified: Tuesday, November 23, 2010

IU privacy expert: New TSA pat-down policies 'handing terrorists a victory'

Nov. 23, 2010

BLOOMINGTON, Ind. -- This week, as millions of Americans pass through security lines at the nation's airports, many will find themselves victims of overaggressive, theatrical safety precautions that do almost nothing to protect travelers, and waste valuable resources that could better be used attempting to identify likely terrorists.

That sentiment is expressed by Indiana University Maurer School of Law Distinguished Professor and privacy expert Fred H. Cate in a letter sent Monday (Nov. 22), applauding leaders of the Senate Committee on Commerce, Science, and Transportation for their close scrutiny of the new policies enforced by the Transportation Security Administration.

"As you know, the new TSA policy requires full-body pat-downs of travelers picked at random and of any traveler who refuses to be X-rayed or presents anything 'anomalous,' such as a knee brace, a pacemaker, or a prosthetic limb," Cate said in the letter to Sens. Jay Rockefeller (D-W.V.) and Kay Bailey Hutchison (R-Texas). "This policy poses a number of serious issues."

Cate argues:

  • Intrusive searches often don't work. They have been repeatedly shown to miss potential explosives and other contraband.
  • Hand searches of medical devices -- for example, an insulin pump -- are simply incapable of determining whether the anomalous device presents a threat. After agents finish feeling the breasts of a woman with an implant, they have no better idea of whether the implant is filled with liquid explosives or silicone.
  • New search policies violate long-held social and legal norms about personal privacy. Even though searches might detect wrongdoing, we reject them on the basis that the "solution" is worse than the "problem." Since the TSA's new policies are unlikely to detect wrongdoing, the searches aren't a "solution" at all.
  • Intrusive searches are demoralizing to the TSA agents, who are forced to perform intensive physical pat-downs of travelers, sometimes including their genitalia.

"The TSA has a long history of ill-informed and ill-targeted security programs, and disingenuous dealings with Congress and the American public," Cate said. "This is the same agency that tried to match passengers against terrorist watch lists with such poor data that it ended up wrongly detaining hundreds of innocent people, including the late Sen. Ted Kennedy. This is the same agency that claimed to need photographic images of travelers' bodies to identify potential explosives, a claim that European experts have again proved not true. And this is the same agency that promised the public its machines weren't capable of storing the nude images of passengers on its machines, only to have more than 35,000 appear on the Internet last week."

Cate acknowledged the challenges faced by TSA agents, and commended them for the job they do. "However," he said, "since the agency's creation, TSA leadership has done little to earn the public's respect or its trust. Its policies are handing the terrorists a victory they could not win on their own."

Cate is the C. Ben Dutton Professor of Law and the director of Indiana University's Center for Applied Cybersecurity Research and its Center for Law, Ethics and Applied Research in Health Information. He is a former member of the National Academy of Sciences Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals.

He is available to comment on the TSA's policies and other privacy issues and can be reached at: 812-855-1161 or