May 29 2013

TSA never got OMB approval for “Certification of ID” (Form 415)

In June 2008, the TSA began requiring would-be travelers who didn’t show government-issued ID credentials to fill out and sign — under penalty of perjury — a new “Certification of Identity” form, and answer questions based on the records about them retrieved by a TSA contractor from some commercial data-aggregation company.

Since then, we’ve made a series of FOIA requests to try to obtain the current form, the rules (if any) for its use, and whether the TSA had gotten this collection of information approved by the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act (PRA).

We’ve recently received a response to one of our FOIA requests, filed more than two years ago, which includes the latest version of TSA Form 415 and makes clear that the TSA has never obtained the requisite OMB approval.

In the absence of OMB approval and a valid OMB control number on TSA Form 415, travelers who decline to respond to these questions or fill  out or sign this form cannot be subjected to any government sanctions, including TSA “civil penalties”.

There are several noteworthy features of the latest documents released by the TSA in response to our FOIA request, particularly TSA Form 415 itself and this email thread regarding how the form is used and whether it requires OMB approval.

First, the e-mail correspondence with the FOIA Office to identify records responsive to our request appears to have been completed within a few weeks. Then the TSA sat on the response for more than two years, presumably while waiting for approval from the DHS FOIA “front office”. From responses to our previous requests, we know that the FOIA “front office” has ordered the TSA not to respond to our requests without this approval, even if responses are complete and otherwise ready to go out.

Second, if the TSA’s latest FOIA response to our request for the “most recent version” is to be believed, the version of the “Certification of Identity” currently in use is this TSA Form 415 dated August 2008.

Third, the TSA never even applied for OMB approval for TSA Form 415 or its unnumbered predecessor “Certification of Identity” form, because the office responsible for obtaining OMB approval was led to believe that the form was to be completed by TSA staff, not by travelers (a manifestly implausible claim, since all versions of the form have included a space labeled for the signature of the would-be traveler).

Fourth, the TSA completely misunderstood the statutory criteria for determining when OMB approval is required. Who fills out the form, or whether there even is a paper form (or information is collected by verbal questioning), is completely irrelevant to the definition in the Paperwork Reduction Act of a “collection of information” for which OMB approval is required:

[T]he term “collection of information” … means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for … answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States….

The consequence is that you aren’t required to complete TSA Form 415 (since it doesn’t have an OMB control number),  you aren’t required to answer any TSA questions (if the same questions are asked of ten or more people), and you can’t be penalized for declining to fill out the form or answer such questions.

May 28 2013

TSA “Glomar” response to request for Terrorist Screening Database records

An individual who used our forms to ask the DHS for its records about their travel  has received response of a sort that we haven’t previously seen to a request of this sort: a “Glomar” response that the DHS will neither confirm nor deny that there are any records about the requester in the DHS mirror copy of the FBI’s “Terrorist Screening Database” (TSDB).

It has long been the policy of the FBI, which is nominally “responsible” for the TSDB, neither to confirm nor deny the existence of TSDB records about any individual.

In 2011, DHS published a notice that it planned to make its own mirror copy, for which it would be responsible, of the FBI’s database. At the same time, the DHS exempted the DHS copy of the TSDB from the Privacy Act.

This is the first DHS response we have seen to a request for records from the DHS copy of the TSDB. It’s no real surprise, but it’s different from the typical DHS responses to requests for records about individuals, which include ignoring requests, producing obviously incomplete responses with no explanation of the missing records, and producing pages and pages of completely blacked-out records.

So the TSA won’t say if you are listed in its copy of the Terrorist Screening Database, but will use it against you if you are.

May 27 2013

Audio: “In the matter of John Brennan”

After extensive negotiations, we were given permission to record audio (but not video or still photographs) of the formal hearing conducted in Portland. OR, on May 14, 2013, in the matter of “Naked American Hero” John Brennan.

Linked below are audio recordings of the entirety of the hearing:

Dramatis Personae other than witnesses (in order of appearance):

Audio (MP3 recordings can be streamed from here or downloaded directly from the links below):

Video: Excerpt from TSA/airport security camera video (from news report, but also entered into evidence at the formal hearing)

Mr. Brennan exercised his First Amendment right to express his political opinion by taking off all his clothes while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport (PDX) on April 17, 2012.

The TSA called the Portland police, who arrested Mr. Brennan for “indecent” exposure, but he was eventually acquitted of all criminal charges by an Oregon judge.

Undeterred — or, more precisely, fearing that Mr. Brennan and others would no longer be deterred from similar politically expressive conduct after his acquittal — the TSA has proposed to assess a $1,000 “civil penalty” against Mr. Brennan for “interfering with screening”.

It certainly appears to us that Mr. Brennan’s actions should have facilitated his screening, and he testified that he was trying to assist the screeners in determining that he was not carrying explosives or weapons.

There are many Alice-In-Wonderland aspects to this administrative proceeding, among them that the TSA has declared the “Notice of Proposed Civil Penalty” which explains the basis for the proposed fine to be “Sensitive Security Information” (SSI) exempt from public disclosure.  The notice was, we presume, served on Mr. Brennan and/or his attorney, but they were not allowed to quote from it publicly.

Portions of the evidence and allegations against Mr. Brennan were also designated as SSI and exempt from disclosure.  We were allowed to attend and listen to the whole formal hearing, but not to see any of the documents that were being discussed and entered into the (secret) record.

The  decision of the Administrative Law Judge (ALJ) on whether to assess a fine against Mr. Brennan, and if so in what amount, will probably also deemed SSI.

According to the rules for TSA civil penalty proceedings, journalists or members of the public can inspect  the docket — including the evidence, transcripts of the depositions and the formal hearing, and pre- and post-hearing briefs — only by filing a formal request under the Freedom Of Information Act (FOIA).

We’ve filed a FOIA request for the complete docket record, and have asked (in accordance with FOIA) that it be processed on an expedited basis, but the TSA’s first response was that they estimated that they won’t complete their response until August 23, 2013.  The Coast Guard ALJ’s office told us that they couldn’t remember anyone ever before asking for an active civil penalty docket, and hasn’t yet given us any estimated date for their response.

In the meantime, our audio recordings linked above are the best available public indication of what the TSA thinks Mr. Brennan did, how they think he “interfered with screening“, and why they think he deserves a $1,000 fine. These are also the best available guidance, for others who may be subjected to TSA enforcement action, about how the process works.

The TSA has threatened other protesters with civil penalties, but in most cases either people pay the proposed fines (for example, if they were trying to carry otherwise-legal firearms through a TSA checkpoint, which happens every day), they are convicted of some criminal offense (usually for drugs), or the TSA backs down and withdraws its proposal for a fine. So far as we know, this is the first time the TSA has continued to pursue a proposed civil penalty for nonviolent, non-criminal  political protest at a TSA checkpoint by someone who contested the proposed fine and exercised their right to a formal hearing.

(TSA Publc Affairs Manager Lorie Dankers, who came down from the TSA regional office in Seattle along with the TSA’s lawyer to attend the hearing in Portland, told reporters that since the TSA’s creation the agency has assessed “a few hundred” civil penalties for “interfering with screening.” But most of those cases involved neither political protest nor a formal hearing.)

This was an administrative proceeding, not a trial. It was held in a courtroom rented from the U.S. Bankruptcy Court, but it was not a trial, not a “court” proceeding, and not governed by court rules.

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May 01 2013

Hearing May 14 in Portland for “Naked American Hero” John Brennan

Does nudity “interfere” with TSA “screening”?

That will be the issue at a hearing before TSA “Administrative Law Judge” George J. Jordan on Tuesday, May 14, 2013 in Portland, OR, in the matter of “Naked American HeroJohn Brennan, who exercised his First Amendment right to express his political opinion by taking off all his clothes [video from TSA/airport security camera] while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport on April 17, 2012.

The TSA calls its checkpoint staff and contractors “Transportation Screening Officers”, but they aren’t law enforcement officers and have no police powers.  So when people do things they don’t like, their normal response — if bullying doesn’t work —  is to call the local police. That’s what they did with Mr. Brennan in Portland.  The local police arrested him and charged him with “indecent” exposure. (There is no law against public nudity per se in Portland.)

But an Oregon judge acquitted Mr. Brennan of these criminal charges, finding that Mr. Brennan’s conduct wasn’t “indecent” and was political speech protected by the Oregon constitution.

That should have been the end of the matter. But the TSA was, apparently, afraid that if Mr. Brennan wasn’t somehow punished, too many other Oregonians might start following his example.

So even though a judge had already found that Mr. Brennan’s nakedness at the TSA checkpoint was not a crime, the TSA is seeking to assess a $1,000 fine against Mr. Brennan for “interfering with screening” in violation of TSA regulations (49 CFR 1540.109).

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