Naked in Front of the Machine: Does Airport Scanning Violate Privacy?

Abstract

Our bodies are increasingly subject to a technologized gaze. This article seeks to better understand the privacy implications of the new, body-focused mode of surveillance, by studying body scanners. The scanners, officially known as AIT (Advanced Imaging Technology), are deployed in airports throughout the United States. During 2013 the TSA will pull out the scanners that enable a detailed view of the naked body and replace them with a generic image. Despite the policy change, the theoretical issues regarding privacy, technology and the human body persist.

Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essential, for producing a convincing balance between privacy and conflicting interests.

We recognize two dissonances that passengers experience when they undergo body scanning in public places. The first, which we call the dress/undress dissonance, results from the conflicting messages that the State conveys as to bodily privacy: ordinarily, the State expects us to conceal our body, whereas in the airport context it is the State itself that requires us to expose our body and subject it to its gaze. The second is the normal/abnormal dissonance. In most contexts, the State conveys a message that it does not take account of its citizens' bodies, in the sense that it is blind to bodily diversity so to enable equal treatment and protection. Body scanners, by contrast, amplify physical differences. We conceptualize these two dissonances within a theoretical understanding of privacy as a concrete manifestation of human dignity, encapsulated in the notion of privacy as control.

Beyond its contribution to the understanding of body scanners, the article has a broader contribution: to surveillance studies, to privacy theory, and to the complex relationship between the law and the human body, and between law and technology.

Keywords: Privacy, surveillance, bodily privacy, human body, body scanners, technology, body and law, abnormal bodies