Jun 22 2010

TSA reaches out to the Identity Project

After years of having our complaints ignored, we were pleased to be invited by the TSA to participate in the ongoing “Multi-Cultural Coalition” organized by the Office of Traveler Specialized Screening and Outreach of the TSA Office of Civil Rights and Liberties, under the direction of the TSA Office of the Special Counselor.

In response to an invitation to submit questions and concerns for the agenda of today’s TSA outreach briefing with this coalition — our first such — we submitted the following questions.  We only got notice of the conference call and submitted our questions at the last minute, and didn’t expect these issues to be addressed on such short notice, but we were pleased to be able to put them on the table for TSA consideration, should the agency chose to respond:

  1. Now that the TSA is carrying out all fly/no-fly decision-making for domestic flights through Secure Flight, what is the procedure for obtaining judicial review of no-fly decisions? Or is it the TSA’s belief that no-fly decisions are not subject to judicial review? (We are particularly concerned, of course, about the situation and the means for judicial review of these decisions against US citizens trapped overseas and unable to return to the USA, or unable to leave the USA, because the DHS will not permit them to fly. The upcoming transition to Secure Flight for international flights means, we presume, that these decisions will shortly be transferred to the TSA. We would like to work this out with the TSA before this transition, so that after the transition travelers denied passage have clear information as to the procedures for judicial review.)
  2. Does the TSA have any plans to promulgate regulations defining what orders travelers are required to comply with from TSA employees or contractors, and/or what questions travelers are required to answer, as a condition of being given TSA permission to proceed through checkpoints or board flights? (The Identity Project has received no response, after more than 6 months, to our FOIA requests for the TSA’s standard operating procedures, and of course those procedures are not binding regulations.)
  3. In particular, does the TSA assert the authority to deny passage to travelers who remain silent in response to TSA or TSA-contractor interrogatories? What language would the TSA prefer travelers use (or would you prefer that they simply remain mute?) in order to most clearly and concisely invoke their right to remain silent in response to interrogatories by TSA employees or contractors?
  4. There have recently been problems with TSA employees and contractors calling local law enforcement officers and making complaints against travelers for exercising their rights to photograph and record their own interactions with TSA employees and contractors, and/or for exercising their right to remain silent in response to TSA or contractor interrogatories. Has the TSA conducted any training or issued any guidance to screeners regarding travelers’ rights to remain silent and/or to record and photograph their interactions with TSA employees and contractors (just as the TSA, airport operators, and/or law enforcement agencies and officers record and/or photograph those interactions)? If so, will the TSA make that guidance public, so that travelers who wish to exercise these rights would be able to carry copies of this TSA guidance to show to TSA employees, contractors, and/or local law enforcement officers?
  5. Has the TSA and/or DHS designated a point of contact and procedures for complaints of violations of human rights treaties, including the International Covenant on Civil and Political Rights, in accordance with Executive Order 13107 on implementation of human rights treaties? If not, when does the TSA and/or DHS expect to do so? Will pending complaints need to be re-submitted once this designation is made? (The complaints of the Identity Project that TSA regulations and procedures violate the ICCPR have been pending without response since 2007 in the case of Secure Fight, and since 2009 in the case of the TSA’s practices of secondary screening on the basis of nationality, in addition to our similar unanswered complaints against other DHS components on closely-related issues.)
  6. The TSA changed its office locations without promulgating new Privacy Act SORN’s or FOIA notices, so that none of the addresses of record in the most recent Federal Register notices or the CFR are valid. As a consequence, none of the TSA’s current SORN’s or FOIA notices are valid, and the knowing operation of each TSA system of records, without a valid SORN with a valid current address having been published in the Federal Register, is a criminal violation of the Privacy Act. What action, if any, is the TSA taking to promulgate valid SORN’s and a valid FOIA notice, to discipline those responsible for the current violations of FOIA and the Privacy Act, and/or to alert those who have sent FOIA or Privacy Act requests into the black hole of the current addresses of record that their requests have not been received, and will need to be re-submitted? What is the proper point of contact for complaints of these violations?
  7. In general, what is the proper point of contact in the TSA and/or DHS for complaints of criminal violations of the Privacy Act, e.g. knowing operation of systems of records by TSA without having promulgated a valid SORN? (The Identity Project has never received any response to any of our complaints, filed in TSA and other DHS component regulatory dockets, of criminal violations of the Privacy Act by TSA or other DHS components.)
  8. 42 USC 2000aa prohibits search or seizure of media, journalism, or other public communications work product materials in the absence of specified conditions (probable cause, etc.). We have received several reports of, and have ourselves experienced, search and seizure of such materials by TSA and its contractors. Has the TSA given any training or produced any guidance to TSA employees and contractors regarding 42 USC 2000aa? If so, will that guidance be made public, so that it can be carried and shown at checkpoints by journalists and others carrying work product materials protected from search and seizure? What procedure would the TSA recommend to people carrying such materials, as a way to alert TSA employees and contractors that certain material is exempt from search or seizure under this statute, and to invoke its protections?

In the course of today’s conference call, the TSA asked for suggestions to improve the signs at TSA checkpoints where virtual strip-search machines (Advanced Imaging Technology (AIT), previously “Whole-Body Imaging” (WBI) in the latest TSA-speak) are being used.  We suggested that the signs should include whole-body images at the same size, scale, and resolution as the displays used by the operators of the machines, when the display is zoomed in on a portion of the body to its maximum magnification.  “That’s new information to me” that the current signs don’t do that, said TSA Special Counselor Kimberly Walton. “We’ll have to look into that. I will take that under advisement.”

4 thoughts on “TSA reaches out to the Identity Project

  1. It has been more than one year since I submitted a FOIA request (TSA09-0624) for TSA’s screening management SOP manual. They have yet to fulfill the request.

    Status updates have been as follows:

    On Wed, Aug 05, 2009 at 11:05:08AM -0400, TSA FOIA wrote:
    > We are diligently processing your FOIA request. Due to the increasing
    > number of FOIA request received by this office; we have encountered
    > some delay in processing your request.

    On Wed, Sep 30, 2009 at 09:49:26AM -0400, TSA FOIA wrote:
    > We are currently processing your case.

    On Mon, Nov 09, 2009 at 07:53:35AM -0500, TSA FOIA wrote:
    > Your file is currently being review by another component.

    On Fri, Dec 04, 2009 at 11:02:12AM -0500, TSA FOIA wrote:
    > Your FOIA case was forwarded for internal review on November 23, 2009.
    > […] Your request is in the “internal review” process.

    On Mon, Jan 25, 2010 at 11:14:44AM -0500, TSA FOIA wrote:
    > Your FOIA has been processed and is currently in the “internal review”
    > process. Once the internal review is completed a response will be
    > sent to you as soon as possible.

    On Mon, Feb 22, 2010 at 02:04:53PM -0500, TSA FOIA wrote:
    > Your FOIA has been processed and is currently being reviewed by TSA
    > management before a response can be sent to you.

    On Tue, Apr 06, 2010 at 04:00:40PM -0400, TSA FOIA wrote:
    > Your request is currently being processed.

    On Tue, Apr 27, 2010 at 09:09:07AM -0400, TSA FOIA wrote:
    > Your FOIA request is currently in management review.

    Date: Wed, 19 May 2010 11:50:57 -0400
    From: “Janet, Kevin ”
    To: Phillip Mocek
    Subject: RE: [SEVENTH REQUEST] Re: FOIA: request status of TSA09-0624
    (placed June, 2009)

    Mr. Mocek, I apologize for the delay in responding but TSA’s response to
    this request is still pending final review and concurrence. Regarding
    your four questions: (1) Processing was completed in January. The April
    reference to “processing” incorporated the final review process – not
    reprocessing the records. (2) As noted above, the review process is
    ongoing. (3) Unfortunately I cannot estimate when this process will be
    completed. (4) By “fulfilled” I am assuming you mean TSA’s release of
    the requested record. No decision has been made regarding releasability.

    —–Original Message—–
    From: Phillip Mocek
    Sent: Tuesday, May 18, 2010 7:08 PM
    To: Kevin Janet – TSA FOIA Officer
    Cc: TSA FOIA Office , DHS FOIA Office ,
    Mary Ellen Callahan – DHS Chief FOIA Officer
    , “Robert S. Bray – TSA Acting Deputy
    Administrator” , Gale Rossides – TSA Acting
    Administrator
    Subject: [SEVENTH REQUEST] Re: FOIA: request status of TSA09-0624
    (placed June, 2009)

    Mr. Janet:

    Could you please answer the questions I asked on April 6, then
    repeated on April 13, April 23, April 27, May 3, and May 10?
    Those were:

    1. In January, you reported that my request had been processed.
    Was that implication that it was no longer being processed
    incorrect, or is it presently being processed a second time?
    (On April 6, you wrote that the request was being processed.)

    2. Has the internal review process that began on November 23,
    2009, that which was still happening on December 4, 2009, and
    was still happening on January 25, 2010, been completed?

    Also:

    3. When do you estimate that the management review you described
    as underway on April 27, 2010, will be completed?

    4. Will my request be fulfilled once the management review is
    completed?

  2. We really admire your approaches on issues of International privacy. Someone needs to ask these questions. Especially when our Bill of Rights are being treated as manageable policy instead of static conditions of the American identity. The rights themselves are buoyant over any national security agendas. They aren’t secondary. They aren’t in a pile of either-or options. National Security personnel have great challenges to overcome but personal rights of the American flyer is not one of them.

  3. Pingback: Coverage continues … « Computers, Freedom, and Privacy

  4. Pingback: Papers, Please! » Blog Archive » DHS responds to our complaints of human rights treaty violations

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