The paper was interesting (it's actually a draft of a forthcoming law review article). My take on the paper is that government agencies may think they can get away with more than is actually constitutional in administrative searches. And it doesn't look good in terms of what agencies such as the TSA will institute, and what lower courts might say is okay. But if patdowns and NoS were to make it to the Supreme Court, the Court might well find their use as general "dragnet" searches unconstitutional.
On the
other thread, it was stated that the TSA would likely argue that because the NoS don't involve physical contact they are less intrusive than patdowns and thus acceptable as primary screening. I think a really strong counter-argument can be made that they are not acceptable. If the TSA were to strip search, not virtual strip search, us as primary screening, even if we undressed ourselves, that would clearly be overly intrusive. I'm not sure if or why, as a legal matter, that the undressing is done by a machine changes its intrusive nature. I think (hope?) the Hartwell opinion referenced the physical nature of the search because that was the only alternative at the time, because NoSs were not yet at airports, not because an intrusion must involve physical contact to be too invasive. My personal opinion on this, although I'm no Fourth Amendment expert, is that the Nude-o-Scopes and the patdowns are not "minimally intrusive" and cannot constitutionally be used for primary screening, although would be acceptable for secondary screening if there was some reason for suspicion. However, the courts may well disagree with that analysis given the confusion about administrative searches discussed in the paper.
A glimmer of hope, however, can be found in
Safford Unified School District v. Redding. The Supreme Court in 2009 found that an administrative strip search of a student to search for prescription drugs was unconstitutional.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that "students... hid[e] contraband in or under their clothing," Reply Brief for Petitioners 8, and cite a smattering of cases of students with contraband in their underwear, id., at 8-9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.