Time and time again, the TSA has acted as though its middle name was “secrecy” rather than “security”.
Case in point: Sai v. TSA.
There’s a lot at issue in this case, but here are some of the problems with the TSA that it has exposed:
Sai poses no threat to aviation security. He has an unusual but recognized medical condition, attested to by documentation from his doctor that he carries when he travels, for which he needs ready access to liquids. The TSA is required by law to accommodate such medical disabilities, as it easily could. TSA press releases claim that travelers are allowed to bring medically necessary liquids through TSA checkponts in any quantity.
But TSA employees at airport checkpoints at Logan Airport in Boston and the TSA contractors who staff the checkpoints at San Francisco International Airport have, among other improper actions, seized Sai’s medical liquids, denied him access to his medical liquids while detaining him, and refused to allow him to pass through checkpoints or travel by air unless he abandoned his medical liquids.
While detaining Sai, TSA employees and contractors have conducted searches unrelated to weapons or explosives (but directly related to activities protected by the First Amendment), including reading through and copying documents Sai was carrying.
The TSA has never tried to claim that any of these actions were justified by “security” concerns. Instead, the TSA has responded to Sai’s requests for information, administrative complaints, and eventual federal lawsuit solely on the basis of secrecy, when it has responded at all, arguing that it isn’t required to divulge anything about what it has done, why, or whether it is justified.
The TSA claims to practice “layered security,” but Sai’s saga shows how the TSA actually practices “layered secrecy” to shield its activities from public and judicial accountability.
Despite TSA press releases describing (often incorrectly) what does or will happen at checkpoints run by the TSA and its contractors, there are no publicly-disclosed or binding “rules” or “policies” governing the conduct of travelers or checkpoint staff.
The TSA has internal “Standard Operating Procedures” (SOPs) for traveler screening. But while the TSA has argued in several court cases that its SOPs are “final agency orders” binding on travelers (who don’t know what the orders we are supposed to follow say), the TSA has simultaneously argued that its SOPs are not “substantive rules of general applicability adopted as authorized by law, [or] statements of general policy or interpretations of general applicability formulated and adopted by the agency,” which the Freedom of Information Act (FOIA), 5 U.S. Code § 552(a)(1)D), would require the TSA to make available to the public. Even when we have specifically requested the checkpoint screening and other SOPs, those requests have been denied.
In other words, the secret SOPs give the public duties, but give us no rights.
The Rehabilitation Act, 29 U.S. Code § 794, which forbids discrimination against people with disabilities, does create rights and remedies, and requires all agencies to adopt regulations to implement them, as the DHS has done in 6 C.F.R. Part 15. Sai complained to the TSA that his rights under this law had been violated. After Sai was interviewed on on national television about what had happened to him, the TSA ordered retraining of all checkpoint staff nationwide regarding the handling of medically necessary liquids. The TSA even prepared a response to Sai’s complaint. However, the TSA has refused, for more than a year, to send Sai that response, probably because it could be used in court against the TSA in a future lawsuit under the Rehabilitation Act.
Unable to get any response to his complaint or FOIA and Privacy Act requests, Sai filed a pro se federal lawsuit in January 2014 under both FOIA and the Privacy Act for the TSA’s records about what happened to him at the airports in BOS and SFO, records related to his Rehabilitation Act complaint, and any other TSA records about himself.
The TSA has yet to make any substantive objection to the lawsuit. Bizarrely, the TSA tried to get portions of Sai’s complaint dismissed as an improper attempt to litigate whether information the TSA might later claim to constitute “Sensitive Security Information” (SSI) should be released, when the TSA had not yet responded to Sai’s request or invoked this or any other basis for withholding any of the requested information, as alleged SSI or otherwise.
Apparently the TSA thinks its “pre-crime” mind-reading abilities extend to predicting FOIA exemption decisions it claims not yet to have made, and predicting what arguments or objections FOIA requesters or litigants might make in response. “Your Honor, our pre-cogs have divined that the opposing party is going to argue as follows…. Since that would be an invalid objection, you should dismiss this complaint and prohibit him from filing any objections to the actions we are going to take, but haven’t yet disclosed to him.”
Until recently, the issues in Sai v. TSA were limited to the TSA’s non-response to Sai’s requests, and its bad faith in failing to respond and in lying to the court about what it had done. Mostly, the TSA has fought to avoid having to make any substantive response to either the factual or legal allegations in Sai’s complaint.
The TSA filed a sworn declaration from an allegedly knowledgeable official denying having received or having any record of one of Sai’s FOIA requests, despite having sent Sai what appeared to be an email acknowledgement of the request and having received another copy of the request in the course of the litigation. After placing this essential factual issue in dispute, the TSA requested a “protective order” against any discovery or depositions related to this or any other factual issue, on the grounds that discovery is “ordinarily ” unnecessary in FOIA (although not so much Privacy Act) litigation because the facts aren’t usually disputed, only the legal questions of the applicability of exemptions once they have been claimed. The judge hearing the case has deferred ruling on discovery and depositions until the TSA files its initial answer to the complaint, although Sai has requested reconsideration of that ruling.
We’ve been on the receiving end of obstruction of our FOIA requests by TSA and DHS officials on the basis of documented personal animus, and there has been systematic political interference by the DHS “front office” with FOIA responses. In Sai’s case, it’s not clear, and probably won’t become clear without discovery, depositions, and perhaps trial, whether the false claims to the court in this case by the TSA’s lawyers and officials reflect gross incompetence, gross negligence, and/or personal or systemic malice.
This month, just days before the TSA’s answer to Sai’s complaint was due, the agency finally provided its first partial responses to some of Sai’s requests, including its first claims that some of the information Sai has been requesting is exempt from disclosure as SSI.
Among the more interesting documents the TSA has finally released is its agreement with the Massachusetts Port Authority regarding closed-circuit television surveillance at Logan Airport in Boston. Most of the memo is devoted to the construction of a legal framework to frustrate public access to surveillance records. The TSA has paid $4.4 million over the last five years for the CCTV system. TSA staff have workstations at checkpoints and other locations with access to real-time and stored images, including images from those cameras paid for by the TSA and other cameras. The TSA controls the camera placement and angles. “TSA may change the field of view of the camera by utilizing their pan, tilt, and zoom functions.”
But despite all this evidence of actual TSA ownership and control, Massport and the TSA “agree that, for purposes of federal FOIA requests, TSA is not in possession of the images captured by the CCTVs to which the Authority [Massport] is giving access.”
According to the memorandum of agreement, “The Authority [Massport] will continue to comply with requests for non-SSI images … in accordance with public records requests pursuant to M.G.L. ch. 4, sec. 7(26) and ch. 6, sec. 10; provide that the Authority will not disclose to any third party any images of TSA operations or TSA personnel without written authorization from TSA.”
As applied to non-SSI images of TSA operations, this provision of the MOA appears to be illegal. We can’t find any basis in the Massachusetts public records law for the withholding by a Masschusetts state agency such as Massport of records created and owned by that agency, on the basis of the failure of a federal agency such as the TSA to give its “authorization” for their disclosure. Nor is there anything in Massachusetts law that authorizes a state agency to exempt itself from its state-law obligations by entering into an agreement with a federal agency to give that agency veto power over disclosures of state-owned records.
Images or other records the TSA claims constitute SSI are another matter. One of the particular evils of the SSI statute and regulations is that they purport to permit the TSA to forbid any third-party “covered person” from disclosing information the TSA subsequently deems to be SSI, even if the information was neither created by, owned by, or obtained from the TSA. The definition of “covered persons” includes any person employed or ever formerly employed by or “contracted to” any airline, airport, travel agency, or computerized reservation system or global distribution system for airline passenger reservations.
So far as we can tell, the TSA has yet to test the legality of sanctioning disclosure by an independent third party of information lawfully created and obtained independently of the TSA or of the former employment that made that individual a “covered person” for life. But the TSA claims, in its regulations, the right to do so.
The inclusion of anyone with any relevant industry or government experience in the definition of “covered persons” forbidden from disclosing anything that the TSA decides is SSI is particularly effective in precluding whistleblowing, insider criticism, or informed expert commentary on TSA practices.
A recent bipartisan report by the staff of the House Oversight and Government Reform Committee — itself the result of whistleblowing by the former head of the TSA’s Office of SSI — focuses on the political use of SSI designation decisions to block the release of information that might embarrass the TSA, regardless of whether it fits the definition SSI in the law and regulations. That’s what happened in the case of TSA whistleblower Robert MacLean, to be heard this year by the U.S. Supreme Court, in which the TSA fired Mr. MacLean for having previously gone to the press and members of Congress with harmless but embarrassing information that, three years later, the TSA labeled as SSI.