There are a couple of concerning things in the case cite:
Originally Posted by Case
the procedures involved in Hartwell's search were minimally intrusive.
I can see TSA arguing that AIT scans are minimally intrusive in the same ways that WTMDs have been held to be minimally intrusive. That is to say, they don't involve physical touching. (This seems to be one of the things the court considered, from the cite.)
Of course, there are a number of people (myself included) who would argue very differently. Perhaps the "not touching" part is minimally intrusive, but the whole "see your genitals" part is far from it.
Originally Posted by Case
escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search
This is how TSA is going to get away with "touchy, feely, proby" law enforcement criminal friskings... They're going to say that while such friskings are an escalation in invasiveness, they are only conducted after a lower level of screening (1) provided a reason to conduct the search, or (2) was voluntarily declined by the passenger.
If one is going to argue that law enforcement friskings shouldn't be given (I think it's pretty clear I feel that way), then an argument needs to be constructed to show that law enforcement friskings are an unreasonable escalation in the process. Hopefully TSA is dumb enough to use 2 styles of friskings-- 1 for alarms (a less "touchy, feely, proby" version) and 1 for opt outs (the more intimate genital fondling version). If they did that, I'd think that people might have a strong argument that jumping to anal cavity probes from a person's simple opt out is an unreasonable escalation.
Originally Posted by Case
Only after Hartwell set off the metal detector was he screened with a wand—yet another less intrusive substitute for a physical pat-down. And only after the wand detected something solid on his person, and after repeated requests that he produce the item, did the TSA agents (according to Hartwell) reach into his pocket
I think this is the key to successfully arguing anything... TSA used 2 different types of searches in this case (WTMD, then hand-wanding) that showed
gradual escalations in intrusiveness
before resorting to reaching into a person's pocket. Further, the reach and grab was done only after the subject refused repeated requests to produce the item. The argument against TSA friskings is likely going to lie with how gradual an escalation is reasonable, what suspicions must be considered reasonable, and how many different methods must be offered prior to using the genital squeeze that TSA seems to be gearing up for in some way.