After stalling for more than five years, the Transportation Security Administration has made public a curious internal memo regarding photography and audio and video recording at TSA checkpoints.

The TSA wants to photograph us and track our movements and activities using facial recognition, but wants to limit our ability to photograph and record its activities.

The memo was released in May 2021 in response to a Freedom Of Information Act (FOIA) request made by Sai in March 2016. The memo itself is undated, but was distributed in July 2011 to TSA Federal Security Directors (FDSs) “for your immediate dissemination and implementation.” Needless to say, that “dissemination” did not include disclosure to the public, then or at any time until now, ten years after the fact.

That we have to make FOIA requests for internal TSA records like this, wait years for answers, and then try to parse the fragmentary responses for clues about TSA “policy” — rather than reading official policies applicable to the public in the U.S. Code, the Statutes at Large, or the Code of Federal Regulations — is indicative of the systemic problem of secret law.

But since secret rulemaking is standard operating procedure for the Department of Homeland Security and its components, what can we learn form the most recently-released memo about photography and recording at TSA checkpoints?

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