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?

There’s an FSD in charge of the TSA staff and contractors at each US airport with scheduled airline service. The TSA has delegated broad (purported) discretion to each FSD (or their designee on duty) to decide on matters including who to “allow” and who to prevent from boarding flights.

It’s unclear whether the newly-disclosed 2011 memo was intended to set policy, to codify existing unwritten policy, or to describe some other source of policy. Whatever it was intended to do, it does not mention any law or regulation. The 2011 memo was distributed six months after Phil Mocek was acquitted of charges trumped up by Albuquerque police after he tried to film the TSA procedure for flying without ID. So it’s possible that it reflects some internal review of TSA practices in response to that incident.

According to the email message accompanying the memo, “The next revision of the Screening Management SOP [Standard Operating Procedures] will reflect this change.” The provisions regarding photography or recording at checkpoints in the 2008 version of the Screening Management SOP that was released (inadvertently) by the TSA in 2009 are quite different from those in the 2011 memo. No more recent version of this SOP was disclosed in response to Sai’s request, and the TSA’s response to this FOIA request did not mention any records withheld in full. It’s unclear whether no change was actually made to the SOP after the issuance of the 2011 memo, or if the TSA improperly and silently withheld the version of the SOP in which these new policies and procedures were incorporated.

There are substantial differences between the 2011 internal memo and the current FAQ on the TSA website, Can I film and take photos at a security checkpoint? Among other notable differences, the TSA website says nothing about not photographing or filming “patdowns”, or about audio recording. In case of incompatibilities, which is supposed to govern individuals’ permitted and prohibited actions: a secret internal memo giving “guidance” to TSA staff and contractors, or an undated, unsigned, public FAQ, citing no sources in law or regulation, directed to travelers and posted on the “official” TSA website?

The 2011 TSA memo appears to be based on the dubious argument that the prohibition on “interfering with screening” extends to any activity by members of the public in response to which checkpoint staff stop doing their jobs, regardless of whether the activity obstructs or impedes checkpoint staff. In effect, this amounts to a sort of “hecklers’ veto”.

It’s not clear how audio recording per se could ever actually “interfere” with the ability of checkpoint staff to perform their lawful duties.  And while the memo purports to prohibit filming or photography of any “resolution patdown” (RPD) on the grounds that this would “disclose” so-called “Sensitive Security Information” (SSI), it’s obvious that whatever a person could film or photograph has already been disclosed by being made visible to the photographer. Unless someone is using a telephoto lens or a high-speed or high-resolution camera capable of revealing details not visible with the naked eye, or is in a prohibited location, filming or photography by members of the public cannot “disclose” anything.

We will leave it as an exercise to the reader to speculate as to the real reason why the TSA doesn’t want members of the public to photograph or record the more intrusive groping  of selected travelers that the TSA refers to as a “resolution patdown”.

If a member of the public attempts to film a “resolution patdown” or if, in the judgment and at the “discretion” of front-line TSA staff, photography or recording “interferes” with “screening”,  TSA staff are directed to call the local police. There’s no indication of what local police are expected to do in such cases, especially if no local law has been violated.

While waiting for the local police to arrive, TSA checkpoint staff are directed to “maintain positive control of the person and his or her accessible property.” This appears to be a directive to TSA staff to (illegally) seize, detain, and arrest the person and their property, but couched in language that carefully avoids using the words “seize”, “detain”, or “arrest” because TSA checkpoint staff and contractors are not law enforcement officers and have no authority to seize, detain, or arrest  people or property.

The memo says that TSA personnel will not (or would not, as of its issuance in 2011) seize, destroy, or delete photographic or recording equipment, film or recordings,  “Absent a possible regulatory or law enforcement violation,” and “without the express direction of [the] FSD.”

This isn’t reassuring: It appears to leave open the possibility for the FSD to order the seizure, destruction, or deletion of equipment, film, or recordings on mere suspicion of any “possible” violation of any law or regulation. There’s nothing requiring the FSD to articulate what violation they think to be “possible”, or the basis for their suspicion — although you could ask. However, this does mean that, if you are threatened with destruction or deletion of recording, you should ask to speak personally with the FSD or their designee on duty, and ask them for the record what law or regulation they believe or suspect you may “possibly” have violated, and their basis for that belief or suspicion.