Lawmakers are moving to protect airline passengers from the kind of outrageous treatment they receive when they enter airport security screenings. Those measures come as public opposition to the Transportation Security Administration's overbearing security protocols gather force.

Last week, I spoke to Lawyers.com about the legal options available to passengers who feel that they have been violated at these security screenings. There have been numerous incidents involving abuses by TSA personnel. As a California aviation accident attorney, I get my share of calls from people who believe that they have been violated by TSA officers at airline security.

Most complaints are related to intrusive pat downs. Unfortunately, options available to persons who want to avoid these pat downs are limited. If the airport has a scanner available, you can just use the scanner. However, if there is no scanner available at the airport, or if it is out of service for any reason, then you have no choice but to go through the humiliating pat down.

However, passengers who have tried to sue the federal administration over a pat down citing privacy invasions, have had less than complete luck. For one thing, the Transportation Security Administration is a federal agency, and is, therefore, immune from civil liability.

However, the full body scanners that are at airports could provide passengers with a viable claim. The body scanners are still fairly new, and there is very little information that is available about the kind of health risks involved with these scanners. There have been a lot of concerns about exposure to excessive radiation from the use of the scanners. In fact, the European Union has been so concerned about the health effects of the full body scanner that it has banned the use of certain x-ray scanners at security screenings at airports.

Do airplane passengers have any rights?

The uproar over the last few days concerning the newly and hurriedly installed “full body scanners” and attendant pat down procedures at airports is understandable, but misplaced. The new procedures have also unfortunately been turned into a media event, starting with the performance of Mr. Tyner in San Diego the other day. The media successor to the Jet Blue attendant who went out the back with the beer, but with not so memorable a motto. “Don’t touch my junk….” Interesting, but hardly realistic. TSA screeners and their predecessors have been touching and going over “our junk” for years at every inspection point.

Moreover, going back over the events at Lindberg as they have been depicted, none of this anti-search crusade from Tyner seems to quite pass the smell test. It is hard to understand how one would impulsively “turn on” a cell phone just as a reaction to some screening procedure. Moreover, so far as I know, a cell phone is not a tape recorder; you do not just turn it on to memorize words, you have to call someone, or they you, and have an ongoing connection.

So was the cell phone connected to someone when Tyner approached the screening point? Was it planned in advance to set up some sort of situation that would thrust Mr. Tyner into the forefront and gather media attention? To him? To a cause? Interesting.

In mulling over this, I should hasten to add that I am far from a fan of the current and predecessor screening procedures, TSA and others, including the many encountered overseas. Far from it. They make flying a hassle and worse, and we all have had that rebellion feeling, being pushed thru some line like cattle or POWs. In fact, I nearly got into serious trouble in a security line at O’Hare getting a connecting flight while coming back from Brazil, by starting to hum the theme from “Rawhide” (“move ‘em up; move ‘em out….move ‘em; move ‘em…Rawhide!), as we shuffled along toward the belt and the metal detector. The TSAers on duty continued to call out in a cadence that became really rhythmic, and fit right in with the “Rawhide” meter: “computers out…shoes off…belts off…all metal out of pockets…keep moving….” Could not help starting to hum. Maybe too loud.

TSA has managed to turn the screening process in many cases into really hard work, although in fairness to them, by far the large majority are courteous and polite, if firm. The one thing that really gets me as not defensible is the arbitrary rule on “liquids and gels,” and similar. This, some may remember, came out just after the Brits arrested some people in the UK they claimed were going to make bombs out of water in some fashion, and/or put something into the water in the containers that could be so created. There were never many details or any clear explanation as to how this might be done, absent a return to medieval alchemy practice, and the Brits were never able to obtain a conviction of the alleged water bombers, but the restrictions went into, and stayed in place now, and seem to have a life of their own. Without any serious scrutiny for the underlying reasons.

So we cannot carry normal sized containers of water, toothpaste, mouthwash, wine for presents at the other end, soda, deodorant, and whatever, and must place what we have in small containers in little plastic see-through bags, much as we did in Third Grades, so teacher could make sure we had our lunch and cookies.

But back to TSA and the scanning machines. And what the media is calling unfettered groping. First, we have to keep in mind that TSA, like its cousin the FAA, is inherently and irretrievably only reactive. Something happens, and then TSA tries to react to it. Prospective thinking did not ever seem to be in its DNA. No thought ever given to footwear until the “Shoe Bomber” tried to set off an explosive by giving himself a hot foot on a flight to the US. Ditto underclothing, until the “Underwear Bomber” going to Detroit last Christmas. So we wait for the next one. What about Brassieres or, what will cause the most problems by far – yes, terrorist tempering with sanitary napkins for women?

The cold fact of the matter is that like it or not, explosive technology unfortunately has moved to the point where conventional metal detectors or a normal routine patdown, which would turn up a weapon or box cutters, no longer can insure that dangerous people carrying dangerous things can be detected. The Underwear Bomber and the recent spate of deadly mail and cargo that was intercepted coming out of Yeman has made that graphically clear.

So what is the answer? Strip everyone naked or change them into a prescreened sterile jump suit sort of gear in which to fly? Strip just a random few?

And speaking of random, it may well be high time to just put aside our admirable-up-to-a-point political correctness about profiling and ethnic screening. There seems to be a pretty well recognized common denominator to terrorist bombers; so far no grannies in wheelchairs or five year olds. And probably not also the tired and hard working businessman or woman who has to fly a lot in their livelihood. Or a mother with babies. And whatever happened to “Clear?” Or the other systems like it that have been continuously proposed but always seem to drop by the way sides? Pre-screening and clearances. Retinal scans to insure who is going on the plane and what is their background. Any of those systems would have kept not only the 09/11 terrorists off any plane, but also the Shoe Bomber, the Underwear Bomber (in spades on that one: we really dropped the profiling ball there).

And ask El Al and the Israelis about profiling. They profile the hell out of prospective passengers, any anyone who sets off any one of a number of potential warnings becomes subject to intense questioning, search and screening. And it has worked for 40 plus years.

But reality is what it is, so here is what we think: First of all, the full body scanners are not going to go away. They are going to be indispensable, given the current approach used by TSA and the failure of the system to come up with something that will pre screen and pre vet a large portion of the traveling public who pose no threat. As in look what happened with the pilots when its union balked. But the Willy Lomans lined up in a crowded airport on Friday night do not have a powerful union working for them.

Nor are pat downs. Frisks, or whatever they are called going to go away. There are going to be necessary, up to a point, because these new scanners pick up most anything, down to an including a handkerchief stuffed in a back pocket, which needs to be checked. When pat downs or frisks turn to “groping” is most probably in the eye of the patee or grope, as they see it, and those can only be dealt with on a case by case basis. If overdone or offensive, their ought to be redress against the clumsy or offensive TSA person. And in order to avoid a basically insoluble “he said she said” about what went on at the check point during the personal search, full time video surveillance camera ought to be running at every check point. Then we can go back and verify what did and what did not happen. They would have lots of other uses as well.

As to the machines: ;based on what we have seen so far – and I personally now have been through several of these, both at airports and sensitive government buildings – there are two immediate concerns that we fear will or may be connected with their use, aside from the objections of intrusiveness and invasion of privacy.

First: Time. Getting organized with you and your scanner and your scanner attendant(s) is a lot more involved than just walking thru a metal detector. First, they have to stop you at just the right place as you pass thru the scanner. Then they take your boarding pass – which up to now you always have been told has to be in your hand as you go thru the detector – woe to the pax who put in in the bucket with shoes and your see –thru zip loc baggie. Then the have to get you to turn 90 degrees from your axis of movement – again, you think you are walking right thru as with the metal detector. You are not. Then they have to align your feet in just the right place and direction, per the markers on the floor. Then you have to put you arms up and/or over year head, sort of like “YMCA song style” and face the scanner.

Is all this going to take extra time with each pax going though, and is that delay going to ripple effect back through the line to create some of the longest delays generally seen only on the Wednesday before Thanksgiving? As the current GEICO ads say: Do woodchucks really chuck wood?

However, there may well be another problem, or real risk down the line. Excess radiation. And here, were are not talking just about what the pilots brought up in their pitch about about more cumulative radiation exposure at altitude. We already have had several clear warnings of what can happen with powerful machines like this is they are not designed correctly, calibrated correctly, maintained correctly, and what is most worrisome: operated correctly.

The most recent bad news concerning powerful scanners is found the current fall out from the extreme over radiation of over 250 patients in scanning at one of California’s most prestigious and well respected hospitals in Los Angeles. The incident are still being investigated by all sorts of State and Federal health agencies, and generated massive litigation. Similar occurrences have been reported at other medical facilities around the county, and reports are growing. In short, according to experts, these patients, instead of receiving a normal or minor dose of radiation for a routine diagnostic or perfusion scan, were subjected to an exposure many times in excess, described by one expert as “in excess of what was inflicted at Hiroshima….” Full short and Long term effects, both as to the patient and potential offspring are still not clear, but radiation poisoning can be very, very serious.

If such an overexposure accident can occur in some the best hospital and medical facilities in the country, involving fully trained and experienced medical personnel, and presumably some of the best and long tested machines and software available to medicine, what would be the chances of similar or worse problems in an airport screen situation, where, (1) the machines in question have no track record; or no we know anything about their testing, or even who made them; (2) they were obviously ordered and put into service on a rush basis, thereby probably geometrically increasing the chances for misuse or mistake in anyone’s hands; (3) we have no idea who calibrated them, or how often that calibration is checked, or what was the training of the persons involved; (4) they are not being set or operated by trained and experienced radiological or medical personnel, but presumably by ordinary TSA employees, some of whom may have no training whatsoever with sophisticated equipment such as this.

And if we do have some bad results by virtue of one or more of these factors, then what? Someone in the Congress has just introduced a bill that purports to so away with any immunity TSA or its employees would have for an over intrusive, unwarranted group or the like. Is there immunity with TSA and the federal government for any radiation poisoning that might be inflicted on pax going thru scanners? That is far from clear at this time. There is a Federal Tort Claims Act the provides for liability of the United States, on the same basis as would apply to a private person, in some situations. But it so far has been generally held that the government is immune from answering legally to any charges arising out of its executive functions, or “discretionary acts.” And knowing the track record of our government, it it feels it has or should have immunity, the Dept of Justice will come down like a ton of bricks to defend that position and fight off the injured claimant for as long as it takes.

Our Congress would be well advised to first look closely at this last question, and if any doubt, see to quickly amending the Federal Tort Claims Act to cover any potential scanning radiation mishaps and damage cause thereby. Rather than posturing and grandstanding about who did or did not get too uncomfortably searched. And to turn its attention to forcing FAA and TSA to install and carry out programs such as “Clear “ was trying to do. We do live in perilous times and as long as airliners are at risk, some sort of reasonable screening or prescreening has to be done.

In noting this, I should emphasize that I dislike the current screening regime