Jeffrey Rosen is Wrong: Scanners are Constitutional

In a Washington Post article published last Sunday, law professor Jeffrey Rosen argues that the TSA imaging devices and pat-downs are going to be struck down as unconstitutional by the Supreme Court. I disagree for the following reasons:
1. There are no Supreme Court rulings directly on point, so you're just guessing.
  Rosen starts by laying out the legal standards applied to airport safety checks in the past, using two federal court cases, neither of which is Supreme Court precedent.
No one can ever say with any degree of certainty which way the US Supreme Court is going to rule based on lower court rulings.  Yes, Sam Alito wrote one of those opinions, but he is one of nine very strong personalities. And no other court has ruled on these particular machines during this particular age of terrorism risk. It's a case of first impression.
2. TSA methods do not invade personal privacy.
  According to TSA sources, the two technologies used to scan each passenger (millimeter wave and backscatter) each blur the facial features of the subject. You can't tell who you are looking at. The person looking at the images is in a closed off remote room.  If the TSA person looking at the "naked" image has no idea who he is looking at, he's not invading anyone's privacy.  Think about it - for someone to embarrass you, or expose you to public humiliation, using a photograph, they have to be able to tell it's you. If your identity is not clear from a picture, it can't do damage to your reputation. It's a tree falling in a forest with nobody there to hear it. Plus the machines currently in airports cannot store, print or transmit any images.

millimeter wave scanner

3.  The scanners are not physically invasive.
  Courts reviewing search cases tend to focus on the actual physical experience of being searched and how big a deal it is.  These machines require passengers to stand still for 3-4 seconds with their hands up. The TSA person manning the machine doesn't get to see anything dirty. there's not enough radiation to tan a flea. Physically, none of that is a big deal. A pat-down of your junk is a big deal, but it's not required unless (a) you turn down the scanner, or (b) you fail the scanner. Since you are being offered a less invasive alternative to start with, the pat-downs pass constitutional muster.
4. The fact that there might be better machines doesn't make these scanners illegal.
  Rosen points out that there are European machines that don't show the bodily details of the subject.  Since these "could be less intrusive," he argues, the courts will strike down the TSA's scanners. Damn, I wish that argument worked with breathalyzers!  There are much better machines available to measure alcohol in your blood than a breath test, but police get to use them anyway. It's not about whether the scanners are the best possible tech, it's about whether scanning, categorically, is minimally intrusive. And it is. Yeah, there's a guy looking at your junk off in a room somewhere; but he looks at anonymous junk all day and he can't tell which one is you. No harm, no foul.
5. The scanners are delivered with storage and recording disabled.
  Again, per the TSA, the machines are in 68 US airports with their storage and recording capabilities disabled. Now if you know they're lying, shame on them, and you have a case. But you can't make a case based on possible abuse. Just because the machines can store and record images while being tested, it doesn't follow that somehow these capabilities will be used by TSA at airports someday. They have to be caught doing it systematically first.
6. If you're gonna call the scanners ineffective, prove it.
  Rosen states:

backscatter unit

 A member of Britain's Parliament who evaluated the scanners in his former capacity as a defense technology company director concluded that they wouldn't have stopped the [Detroit underwear] bomber

What MP? How and where did he evaluate them? Who did he work for in the defense industry?
  Turns out it was  Ben Wallace, a conservative MP, who once consulted for Qinetiq, a company that also makes scanners and evaluated its products in the UK in 2002. The TSA claims that our equipment "can detect both metallic items and non-metallic substances such as powders, liquids and gels that can be used in explosive devices as we saw in the attempted attack last Christmas." If all you're citing is a sour-grapes comment by someone with an interest in a competitor company that didn't get the bid, you don't have a constitutional-level complaint yet. Go blow the lid off of TSA's quality control testing and call me back.
7. It's not a "virtual strip search" and it is actually pretty "routine".
  Rosen writes that non-routine strip searches can only be conducted once someone fails a primary screen, giving the government justification to go deeper. True. Then he opines: "Neither virtual strip-searches nor intrusive pat-downs should be considered 'routine,' and therefore courts should rule that neither can be used for primary screening."
  OK, let's break that down: these scanners, as stated above, are not virtual strip searches because nobody sees you naked who can recognize you, and you're not actually naked. Big difference. Also, under the TSA scan, you don't get patted down (which is more invasive) unless you voluntarily turn down the 3 second scan or if you fail it. So nobody's forcing you into the more invasive search unless you fail - which is exactly what the law allows.
  The word 'routine' has two meanings: commonplace (as in applied to everyone), and non-invasive. The court decisions calling metal detectors routine are calling them 'commonplace' - what you are saying is that they are invasive and therefore not routine. When arguing a case based on prior precedent, you kinda have to go with their usage.
8.  The scanners are not as outrageous as strip-searching a 13 year old girl.
  Finally, Rosen points out that the USSC struck down as unreasonable a school strip search of 13-year old Savana Redding 8-1 last year.  True - and a great decision it was. But that search was not for weapons and explosives at an airport. It was for Advil, based on a weak tip from another little girl who was pissed off at Savana. The basis of the ruling was the outrageous invasion of privacy beyond what was justified under the circumstances. If the TSA scanners ever get to the Supreme Court, the government will be citing 9-11 and actual psychotic criminals as justification for a 3 second anonymous digital search.  Big.   Fucking.   Difference.
 
  So, y'know, who the hell am I, but I think the guy's got his head up his ass. Which is the perfect place to hide it from these scanners, by the way.  ; )