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.”