About those bloggers and TSA subpoenas

Posted by Clyde Middleton on Dec 31 2009 Filed under Politics. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

Two of our brethren were minding their own business, just publishing an internal-only TSA security directive, when all of a sudden Men with Badges & Subpoenas show up at their homes. The nerve, eh?

Let’s get the juicy part out of the way first. Here’s the full text of super-secret directive:

U.S. DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
Aviation Security Directive

Subject: Security Directive
Number: SD 1544-09-06
Date: December 25, 2009
EXPIRATION: 0200Z on December 30, 2009

This Security Directive (SD) must be implemented immediately. The measures contained in this SD are in addition to all other SDs currently in effect for your operations.

INFORMATION: On December 25, 2009, a terrorist attack was attempted against a flight traveling to the United States. TSA has identified security measures to be implemented by airports, aircraft operators, and foreign air carriers to mitigate potential threats to flights.

APPLICABILITY: THIS SD APPLIES TO AIRCRAFT OPERATORS THAT CARRY OUT A SECURITY PROGRAM REGULATED UNDER 49 CODE OF FEDERAL REGULATIONS (CFR)1544.101(a).

ACTIONS REQUIRED: If you conduct scheduled and/or public charter flight operations under a Full Program under 49 CFR 1544.101(a) departing from any foreign location to the United States (including its territories and possessions), you must immediately implement all measures in this SD for each such flight.

1. BOARDING GATE
1. The aircraft operator or authorized air carrier representative must ensure all passengers are screened at the boarding gate during the boarding process using the following procedures. These procedures are in addition to the screening of all passengers at the screening checkpoint.
>> 1. Perform thorough pat-down of all passengers at boarding gate prior to boarding, concentrating on upper legs and torso.
>> 2. Physically inspect 100 percent of all passenger accessible property at the boarding gate prior to boarding, with focus on syringes being transported along with powders and/or liquids.
>> 3. Ensure the liquids, aerosols, and gels restrictions are strictly adhered to in accordance with SD 1544-06-02E.

2. During the boarding process, the air carrier may exempt passengers who are Heads of State or Heads of Government from the measures outlined in Section I.A. of this SD, including the following who are traveling with the Head of State or Head of Government:
>> 1. Spouse and children, or
>> 2. One other individual (chosen by the Head of State or Head of Government)
>> 3. For the purposes of Section I.B., the following definitions apply:
>>> 1. Head of State: An individual serving as the chief public representative of a monarchic or republican nation-state, federation, commonwealth, or any other political state (for example, King, Queen, and President).
>>>> 2. Head of Government: The chief officer of the executive branch of a government presiding over a cabinet (for example, Prime Minister, Premier, President, and Monarch).

2. IN FLIGHT
1. During flight, the aircraft operator must ensure that the following procedures are followed:
>> 1. Passengers must remain in seats beginning 1 hour prior to arrival at destination.
>> 2. Passenger access to carry-on baggage is prohibited beginning 1 hour prior to arrival at destination.
>> 3. Disable aircraft-integrated passenger communications systems and services (phone, internet access services, live television programming, global positioning systems) prior to boarding and during all phases of flight.
>> 4. While over U.S. airspace, flight crew may not make any announcement to passengers concerning flight path or position over cities or landmarks.
>> 5. Passengers may not have any blankets, pillows, or personal belongings on the lap beginning 1 hour prior to arrival at destination.

AIRCRAFT OPERATOR ACKNOWLEDGMENT: The aircraft operator must immediately provide written confirmation to its assigned PSI indicating receipt of this SD.

AIRCRAFT OPERATOR dissemination required: The aircraft operator must immediately pass the information and directives set forth in this SD to all stations affected, and provide written confirmation to its PSI, indicating that all stations affected have acknowledged receipt of the information and directives set forth in this SD. The aircraft operator must disseminate this information to its senior management personnel, ground security coordinators, and supervisory security personnel at all affected locations. All aircraft operator personnel implementing this SD must be briefed by the aircraft operator on its content and the restrictions governing dissemination. No other dissemination may be made without prior approval of the Assistant Secretary for the Transportation Security Administration. Unauthorized dissemination of this document or information contained herein is prohibited by 49 CFR Part 1520 (see 69 Fed. Reg. 28066 (May 18, 2004).

APPROVAL OF ALTERNATIVE MEASURES: With respect to the provisions of this SD, as stated in 49 CFR 1544.305(d), the aircraft operator may submit in writing to its PSI proposed alternative measures and the basis for submitting the alternative measures for approval by the Assistant Administrator for Transportation Sector Network Management. The aircraft operator must immediately notify its PSI whenever any procedure in this SD cannot be carried out by a government authority charged with performing security procedures.

FOR TSA ACTION ONLY: The TSA must issue this SD immediately to the corporate security element of all affected U.S. aircraft operators.

FOR STATE DEPARTMENT: Retransmittal to appropriate foreign posts is authorized. Post must refer to STATE 162917, 201826Z Sep 01, Subject: FAA Security Directives and Information Circulars: Definitions and Handling, for specific guidance and dissemination.

Gale Rossides
Acting Administrator

Yeah, sorry, I purposefully misled you all. There are no “juicy” details. There is but one detail that a terrorist wannabe with exploding underpants could try to exploit: To be that one person a Head of State exempts from search. Seeing said Head of State would also have board the plane, then the dude (or dudess) would be signing their own death warrant. Good luck with that.

So we are left with a meaningless directive. Everything besides the HOS provision would be learned on a single dry run. Personally, I don’t think the terrorist wannabes with exploding underpants are that dumb.

Back to our suffrage-bearing brethren. Steven Frischling and Chris Elliot were greeted by Special Agents flashing Homeland Security badges and subpoenas.

“What was your source for the Security Directive?” was the main inquiry. In both instances, the SD was e-mailed to them anonymously. Both write often about TSA issues, and sicne we no longer have a WaPo or Rolling Stone to go to, it seems that leakers seek out bloggers. Eat that, Rolling Stone. One or both of the guys are presently sans laptop, but it is clear from their post-interrogation posts that both have alternative access to the Internet. Praise Allah for Algore, the inventor of the Internet, the personal computer, wireless routers, and the binary system of mathematics. Without him, well, let’s not get started on CarbonFootprintBoy.

Was the TSA acting within its boundaries by obtaining subpoenas to track the source of the internal-only document? Absolutely. It’s a matter of national security, regardless that the SD is pathetically weak, has thinly designed procedures, and won’t prevent any terrorist wannabe with exploding underpants from dispersing genitalia around the pressurized cabin until, thankfully, the detached testicles get sucked out the gaping hole in the fuselage. Somewhat mixed feelings about that, I guess. Can’t win for losing – or something like that.

The heart of the issue is that “freedom of the press” is not freedom to underwrite criminal behavior. And disclosing “national security secrets” falls under the broader rubric of “criminal behavior.” One of the most recent similar issues involved the USA Today reporter and the anthrax story – off to jail for not disclosing the source.

In this instance, with the pathetically stupid SD, all the government was doing was being consistent. I completely agree that “freedom of the press” needs to be interpreted as it has been – a limited right in some instances.

Would I have distributed the SD if it came to me in the first instance? Absolutely. I was central to the Canadian fiasco a few years ago when that government tried to kill off publication of stories critical to the ruling party. I published the link to the full, unredacted version of the TSA Screening Manual.

The natural tension here is the right of the public to know over the privilege of the government to have unknown. I opt for the former, and if the government really needs something to be protected then it needs to do a better job.

Look at this situation – we’re not talking about the NYT disclosing alleged secret prisons in Lithuania. It’s a couple of bloggers releasing an embarrassing thin directive.

Oh, was the NYT visited by the government with subpoenas in hand? I’ll have to look into that. I don’t recall reading anything about it. Somehow I doubt it.

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