TSA discloses discriminatory and improperly withheld procedures

There are no legally binding rules (other than those provided by the federal Privacy Act, the U.S. Constitution, and international human rights treaties, all of which the TSA routinely ignores) specifying the limits of TSA authority at checkpoints, what you do and don’t have to do, and which questions you have to answer or orders you have to obey.

So the traveling public, and public interest organizations like the Identity Project, have been reduced to trying deduce the de facto “rules” from the TSA’s internal procedures manuals and directives to its staff, using the Freedom of Information Act — to the extent that we’ve been able to find out what documents to ask for by name, and that the TSA has been willing to release them, usually in incomplete and censored (“redacted”) form.

Now the TSA has done us a favor by posting an unredacted version of the document of which we’ve received only portions of an earlier version, and the complete current version of which is the subject of one of our current FOIA requests: the TSA’s “Screening Management Standard Operating Procedures (SOP)”.

In posting the document on a federal government website (fbo.gov, for “Federal Business Opportunities”) as part of the public specifications for bidders on a TSA contract, the TSA added red outlines highlighting certain portions of the PDF document, and coded black rectangles to overlay them as a separate layer of the PDF file.  But they left the complete text and images unredacted, so that they could be selected, cut, and pasted into a text editor from any PDF reading software.  For your convenience, we’ve posted a copy with the black blocks removed, but the red highlights and everything else retained, so you can see what portions the TSA might have been trying (ineptly) to hide.  Despite false TSA claims that it “was immediately taken down from the Web site”, as of today the original version is still available on the same government site, although at a slightly more obscure URL.

If, like us, you were hoping to learn the non-rules for TSA checkpoints and “screening” (search and interrogation), the Screening Management SOP is disappointing.  It’s mostly about bureaucratic procedures for checkpoint supervisors.  There’s been a lot of excessive commotion about whether its posting was a security breach or provides a “road map for terrorists” (it doesn’t), but little attention is being paid to some more significant things it reveals.

Here’s what we think is really significant about this document, and its release, and what we’re doing next:

  1. Little, if anything, in the Secreening Management SOP is really so sensitive as to justify withholding it from the public, particularly when disclosure is specifically requested under FOIA (as it has been by us).  Because the unredacted version posted by the TSA includes the portion provided (in more effectively redacted form) in response to our previous FOIA request, it’s possible to see exactly what was withhold.  Here are those pages, dealing with ID checking, as posted on fbo.gov and as provided to us in response to our FOIA request. Among the more obvious redactions, for example the TSA blacked out the phrase “appears to be tampered with” from the sentence, “If the ID lacks the required Federal, State, or local government, airport, or aircraft operator ultraviolet or micro printing security features, contains inkjet dots, or appears to be tampered with, the ID is suspect.”  Would any terrorist likely to be successful in bypassing TSA security really be surprised, or benefit in planning their attack, to learn that TSA agents are instructed to be suspicious of documents that appear to be tampered with?  We think not. Most of the other attempted redactions similarly fall short of the criteria for exemption from disclosure in response to FOIA requests, and call into serious question whether the TSA is complying with FOIA. We look forward to receiving a similarly complete and unredacted copy of the latest version of the Screening Management SOP and its updates in response to our current request.  The TSA is still sending FOIA requests into a black hole, denied our request for expedited processing and denied our appeal of that denial, and has failed to respond by the deadline for even a non-expedited request.  We’ve now appealed that “constructive denial” of our request.  (Ironically in light of the fact that they had already posted it themselves on the Web, one of the reasons the TSA gave for denying our request for expedited processing was that even in whatever redacted form they might release it, “The Screening SOP … cannot be posted on your website for public viewing as you intend.”) The TSA is required to act on this appeal, and to produce the documents we originally requested, within 20 business days, or we will have exhausted our administrative remedies and be entitled to file suit for violation of FOIA and to force them to release the documents.
  2. The procedures are blatantly discriminatory and in apparent violation of Federal law, the U.S. Constitution, and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by and binding on the USA.  One of the portions the TSA tried to hide is as follows: “If the individual’s photo ID is a passport issued by the Government of Cuba, Iran, North Korea, Libya, Syria, Sudan, Afghanistan, Lebanon, Somalia, Iraq, Yemen, or Algeria, refer the individual for selectee screening unless the individual has been exempted from selectee screening by the FSD [Federal Security Director, i.e. most senior TSA supervisor for the airport] or aircraft operator.”  Some discrimination at borders and against foreigners based on national origin may be legal, if reprehensible, under U.S. law (although it may not satisfy the standards for compliance with the ICCPR), but as applied to dual U.S. citizens or to permanent U.S. residents (green-card holders) from these countries traveling within the USA, this practice clearly constitutes illegal discrimination on the basis of national origin, which the TSA specifically claims not to engage in.  Of course, disclosing this will do nothing to “aid terrorists”, since citizens of these countries already know that they are routinely and systematically “selected” for more intrusive interrogation and search on the basis of their national origin.  We look forward to seeing both private litigation and internal government enforcement action by the DHS Office of the Inspector General and TSA Office of Civil Rights and Liberties against the TSA and the officials responsible for these clearly illegal and blatantly discriminatory procedures.
  3. The Screening Management SOP for TSA supervisors reveals the existence of separate “Checkpoint Screening” and “Checked Baggage Screening” SOPs for front-line screeners, TSA screening FAQs, and several other related documents we didn’t know about before.  We’ve immediately filed a new FOIA request for these additional documents, and will of course post whatever we receive in response.
  4. The TSA is claiming that “The version of the document that was posted was neither implemented nor issued to the workforce.  In fact, there have been six newer versions of the document since this version was drafted.”  But a side by side comparison of the comparable portion of this version with the excerpt provided to us in response to our previous FOIA request shows that while the pagination differs slightly, the version number, date, and text are identical.  And the version on fbo.gov was part of a legally-mandated process for ensuring a fair and open competition among potential bidders for TSA contracts.  We didn’t ask for any specific version, and the TSA disclosed this one to us in January 2009, and posted it on fbo.gov in March 2009. Why did the TSA post this version, or provide it to us, if if had never been implemented and had already been revised?  Were they trying to mislead potential bidders, mislead us, mislead the public, or all of the above?  And were the TSA FOIA staff who sent us this version aware of the attempt at deception in which they were playing a part?  Or was this version actually implemented, at least at one time, and the TSA is lying in its latest press releases about what happened?  We hope to find out more as soon as the TSA provides us with the current version, including all updates, in response to our latest pending FOIA appeal of their failure to act on our request.

[Update: the TSA has acknowledged our FOIA request for additional information about its procedures, but has given itself an extension of time and has denied our request for a waiver of fees on the boilerplate grounds — clearly inappropriate in this case — that this information doesn’t concern government operations, that disclosure of these procedures isn’t likely to contribute significantly to public understanding of government operations or activities, and that the interest of the Identity Project (which the TSA admits is a media organization, and which is a project of a tax-exempt non-profit educational and charitable organization) is primarily commercial.]

16 Responses to “TSA discloses discriminatory and improperly withheld procedures”

  1. Papers, Please! » Blog Archive » TSA sends our FOIA request into a black hole Says:

    […] TSA reveals discriminatory and improperly withheld procedures (December 10, […]

  2. Wandering Aramean Says:

    Best of luck to you in your efforts.

    Since my initial contact with the TSA on Monday I’ve continued to be in touch with their Office of Public Affairs, trying to get answers to the last two questions you’ve posed. As of yesterday afternoon the answer was that the FOIA office was looking into it. I’m hoping for a better answer today.

    I’ll be sharing any updates that I receive.

    It is also worth noting that in their statement yesterday the TSA has backed off from calling the “redacted” version a draft so they may be finally coming about on that front.

  3. Trollkiller Says:

    Keep after them, I am still waiting on a FOIA request from over a year ago. All mine had to deal with was a followup on a complaint.

    BTW head’s up, some Congress-critters are trying to find a way to prosecute those of us that are hosting the SOP.


  4. Papers, Please! » Blog Archive » Complaint against TSA discrimination Says:

    […] Papers, Please! Challenging ID Demands The Identity Project explores and defends the fundamental American right to move freely around our country and to live without constantly having to prove who we are or why we are here. Home The Issue Who We Are What We Do Secure Flight Featured Cases Policy Analysis Lawyer’s Corner Take Action Press Room Contact Us Friends « TSA discloses discriminatory and improperly withheld procedures […]

  5. Consumer Travel Alliance » TSA discloses discriminatory and improperly withheld procedures Says:

    […] This post was first published by Edward Hasbrouck on http://www.papersplease.org. […]

  6. Fascist Nation Says:

    Trollkiller: BTW head’s up, some Congress-critters are trying to find a way to prosecute those of us that are hosting the SOP.

    Sweet! Free publicity.

  7. pligg.com Says:

    Papers, Please! » Blog Archive » TSA discloses discriminatory and improperly withheld procedures…

    TSA discloses discriminatory and improperly withheld procedures!…

  8. Papers, Please! » Blog Archive » Congress members: “Kill the messenger!” Says:

    […] of Congress have sent a joint letter to Secretary of Homeland Security Janet Napolitano about the posting of a version of the TSA’s Screening Management Standard Operating Procedures on a Federal […]

  9. Papers, Please! » Blog Archive » TSA won’t tell Congress what its procedures are Says:

    […] Director of the TSA is scheduled to appear before a Congressional subcommittee to testify about the posting of an unredacted version of the TSA’s “Screning Management Standard Operating Procedures (SOP)” on a […]

  10. Papers, Please! » Blog Archive » He’s got a little list (and we’re on it) Says:

    […] within hours” after the TSA learned last Sunday, December 6th, that it had been posted on a federal website at fbo.gov. That’s not true: it was available on the same site, although at a slightly more obscure URL, […]

  11. Papers, Please! » Blog Archive » Lessons from the case of the man who set his underpants on fire Says:

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  12. Papers, Please! » Blog Archive » TSA, DHS unresponsive to human rights complaints Says:

    […] gotten an initial round of non-responses from the DHS and TSA to our complaint that their procedures for subjecting holders of certain passports to more intrusive search and/or interrogation as a […]

  13. Papers, Please! » Blog Archive » DHS shifting from national origin to ID-based passenger profiling Says:

    […] the DHS announced that it is partially replacing its practice of illegally profiling air travelers seeking to board flights destined to the US by national origin […]

  14. Papers, Please! » Blog Archive » TSA says all their Standard Operating Procedures are secret Says:

    […] earlier version of the same document in response to one of our previous FOIA requests, and despite an unredacted copy of the entire document having been posted on a public Federal government website, the TSA now claims that no portion of […]

  15. Papers, Please! » Blog Archive » Tidbits from the TSA show “screening” being used as illegal general criminal dragnet, not for aviation security Says:

    […] asked for various TSA policy documents whose existence was revealed when the TSA posted a copy of its “Screening Management Standard Operating Procedures” (SOP) on a public […]

  16. Papers, Please! » Blog Archive » Who will steal and reveal the “secrets” of the DHS? Says:

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