Is There a Mini Constitution in Sky Mall? How the TSA Forgets Citizens' Rights

In recent years, the American public seems to have fallen under the impression that providers and regulators of airline travel have extra-legal powers. These fictional powers typically mean that passengers can be treated like cattle. The evidence for this is legion. My favorite aviation abuse motif is the plane stranded on the tarmac, passengers forbidden to leave, babies crying, etc. (For a good idea of how this sort of false imprisonment impacts passengers, view South Park’s helpful reenactment.) So I think we are all used to stories of the TSA’s ham-fisted ineptitude. But the TSA’s latest misstep, the intimidation and harassment of bloggers, stands out in the Pantheon of Unacceptable and so deserves special attention.

Brief rundown: Somehow a passenger managed to get on a plane with explosives sewn into his clothing. Thankfully, his attempted detonation fizzled. In the aftermath, the TSA sent out a document to essentially every airline and screener outlining heightened security screening measures (read: more pat downs). The document was not classified. On December 27th two bloggers, Steven Frischling and Christopher Elliott, posted and commented on these new security directives.

Then the TSA lost its mind and subpoenaed the bloggers on December 29th, hoping to find the source of the “leak” and stifle further discussion of its super-secret, ultra-effective policies.

Frischling complied with the subpoena, in part because he did not know the identity of the source, there is no federal shield law to protect him, and he felt that he could lessen the ordeal by cooperating. According to Wired, agents went through his phone contacts and determined it was necessary to take an image of his hard drive. However, it seems that in this process they broke Frischling’s laptop. With Frischling’s permission, they seized the computer and then departed.  

Elliott refused to divulge his source and quickly retained counsel. Then the TSA immediately backed off, admitted no wrongdoing, and decided that its subpoena was “no longer necessary.” Oh, and then the agency told Frischling that he was no longer in trouble; though it is not obvious what charges they could have brought anyway.

Where to begin?

First off, just as it's important to remember that the TSA is not a breed of legal superman, let us also remember that bloggers (contrary to public belief) are members of the free press. Bloggers are not made legal sub-humans merely because they may host ads for lolcats or PEN 15 enlargement pills. Neither blog under issue has such ads, but again, there should be no legal differentiation between classy and vulgar news outlets. So with that in mind, would the TSA have ever tried this stunt with the “legitimate press?” I’m guessing that there is zero chance they would bother the New York Times.

A policy impacting the entire class of airline travelers (during the busiest week of the travel season no less) is certainly newsworthy. With the TSA occupying the cone of silence, travelers naturally sought out some source of information for basic travel questions: How many bags may I take on? Will I be allowed to use the restroom during the flight? Can I bring on any electronics at all?

Second, it is not obvious if either blogger did anything wrong or if there was any leak worth investigating. The document was not classified and was widely distributed to an industry comprising thousands of individuals. Surely the TSA did not expect its document to remain secret for very long. Furthermore, the directives were put in place immediately and so many passengers began experiencing the extra security procedures first hand. Without doubt, at least some of these travelers are going to gripe on their blogs or simply tell their loved ones to expect long lines because of the aforementioned security measures. Perhaps some intrepid reporters would buy plane tickets and (wait for it) report on their experiences.

Third, it seems to me that the TSA was trying to save face by pushing an absurdly flimsy subpoena on some bloggers because just a few weeks ago someone leaked the entire TSA Security Manual. This was a smidge more serious because A) it detailed procedures that the average passenger would not inevitably discover and B) each page clearly stated that this information was to be shared only to persons with a need to know. How did that leak take place? According to a CBS report, the TSA says it was "improperly posted" by the agency to a government jobs site with redactions, but the redactions were merely black text boxes added to a PDF. A few clicks and presto-changeo the text became legible. Good one. Let's all give the TSA a slow clap.

So to sum up: Though the law does give the TSA power to collect information, 49 U.S.C. § 46104, that does not strip citizens of their rights. TSA abused its power to subpoena in order to bully, then turned tail when at least one blogger decided to test the legal waters. This brings two possible solutions to mind:

  1. Strip the TSA of the power to subpoena and reintroduce greater judicial oversight to the whole process. But this is a political impossibility because no one wants to be on the hook when the next attack occurs. Incidentally, I’m shocked that there has not been a larger push to link the nearly successful Christmas attack with the almost certainly unrelated prior leak of the TSA security manual. Anonymous leaks make excellent scapegoats.

  2. Pass the federal media shield law ASAP and be sure to include bloggers. If bloggers serve the same purpose as other news gatherers, it stands to reason that bloggers should receive the same protections. While the latest version of the bill features a balancing test that might easily be tilted in favor of the government (if law were a card game, terrorism would always trump), at least its better than nothing.

A CMLP reader submitted a database entry for this case that we've brushed up and published.  You can consult TSA v. Chris Elliott and Steve Frischling for details and links to other coverage.

UPDATE: The plot thickens. It seems that someone used Steve Frischling's Twitter account to set a trap to snag the person who leaked the TSA security directive. According to Wired : "

Hours after two TSA agents served a civil subpoena on blogger Steven Frischling last week to uncover the anonymous source of a leaked document, an unusual message appeared on the blogger’s Twitter account.

'To the gentleman who sent Flying With Fish the TSA Security Directive … Thank You! Can you drop me an email?I have a question. Thanks-Fish.' "

Frischling has declined to comment on who authored this post, though the time stamp seems to imply that it was posted while agents were interviewing Frischling at his home.  According to Wired:

"According to someone familiar with the incident, one of the TSA agents, while in possession of Frischling’s BlackBerry, typed the message in the blogger’s Twitter account. He then handed the BlackBerry back to Frischling and asked him to click on the “send” button to post the message to his Flying With Fish Twitter page, the source offered to Threat Level."

I'll continue to follow this story. If this account is accurate, it reminds me of the not-so-voluntary social network hijacking on Facebook and MySpace.


(Andrew Moshirnia is a second year law student at Harvard Law School and a CMLP blogger. He wishes everyone a happy new year and expects to enjoy a free colonic the next time he flies the friendly skies.)

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