Court: Federal Law Allows Lying in TSA-Related FOIA Requests
tsaoutofourpants.wordpress.com
tsaoutofourpants.wordpress.com
Basically, the opinion decided three things:
1) The TSA acted reasonably to pixilate the names and faces of low-level TSA employees in the released videos;
2) The TSA's search for relevant documents was reasonable and the plaintiff did not provide any information that refuted the reasonableness of the search; and
3) The District Court was not empowered to review the substance of the redactions because Congress gave that power to the Courts of Appeal.
I didn't see anything about the court sanctioning "lying."
Basically this dude sounds like a crank who filed a pro se complaint with a laundry list of alleged Constitutional and statutory violations that didn't actually hold water and is now mad that the District Court told him to pound sand.
Government employees are taxpayers too, man.
Second, the District Court isn't saying that it's okay to lie in response to a request under the FPRA in general. Rather, its saying that because Broward was acting at the direction of the TSA, the TSA's direction to deny the existence of the footage preempted any requirement under the FPRA to respond to the request. Remember, lying is not in general illegal. It's only illegal in specific contexts under specific statutes.
2) The TSA doesn't get to "direct" a state agency to violate state law unless they are empowered to do so by law. There is no basis in law for the TSA's assertion that lying is required. A Glomar response would have protected their interests, but they lied to avoid having to admit to having embarrassing footage.
> Finally, Plaintiff maintains that Broward violated the FPRA by falsely denying the existence of surveillance footage from the security checkpoint.
> Like FOIA, the FPRA provides that Florida citizens have a broad right to inspect the records of public bodies absent a clear and specific exemption from disclosure.
> TSA regulations, meanwhile, provide that airport operators must “(1) Restrict the distribution, disclosure, and availability of sensitive security information (SSI), as defined in part 1520 of this chapter, to persons with a need to know; and (2) Refer all requests for SSI by other persons to TSA.” 49 CFR § 1542.101(c); see also id. §1520.9(a)(3) (providing that airport operators must “[r]efer requests by other persons for SSI to TSA”).
> Here, Broward acted pursuant to federal regulations and the OTA when it consulted the TSA regarding Plaintiff’s records request, and it acted at the direction of the TSA in denying the existence of surveillance footage. The Court therefore has difficulty in concluding that Broward’s actions could be unlawful under the FPRA.
I wish you the best with your efforts. It's encouraging to see someone making the case for sanity in a system that's largely gone off the rails.
Anyway, the judge threw out your case because you were seeking access to a video that you already (eventually) were provided -- so there was no case.
IANAL.
Incidentally, the mootness justification is incorrect as well. When a government action is capable of repetition while permanently evading review (as is clearly the case here: they're not allowed to lie, but if you catch them, it's moot), an exception to the mootness doctrine is created.
It suggests—in dicta—that it probably wasn't[1] but ultimately declines to definitively rule on the the issue[2].
[1] "The Court therefore has difficulty in concluding that Broward’s actions could be unlawful under the FPRA."
[2] "At any rate, assuming without finding that Broward did not comply with the FPRA when denying the existence of the requested footage, the Court finds that Plaintiff’s FPRA claim ... is now moot". (Emphasis added)
An issue is 'moot' if there is no relief possible. The relief that was sought for lying, according to the ruling, was the release of the checkpoint video. But it had already been released, therefore there's nothing further for the judge to rule on.
Were you suing for other types of damages based on the Broward Co. letter? Did the judge somehow misinterpret the damages you sought?
Either way the judge has not ruled that the agency is "allowed to lie" in general, and even in this specific case only mentioned the idea in passing but then ultimately judged it moot (i.e. no precedent set one way or the other).
So, what was the matter in controversy here? And why were you willing to settle for no action being ordered or damages awarded even if you won?
Apparently both you and the TSA agree that Broward's initial letter was deliberately inaccurate, so that can't have been the matter under controversy.
Some key points from the opinion:
* There is precedent stating that district courts do not have jurisdiction to review sensitive security issues and that this has to be considered by an appellate court. The main way to get to an appellate court is to dismiss the case at a district level. Therefore, I would consider this less the court saying "what the TSA did was proper" and more "I can't rule on that, but let's send you to the right court."
* The plaintiff accuses Broward County of lying at the TSA's direction about the existence of the surveillance footage. Two issues here: (1) If the TSA is telling Broward to lie, then it's obviously the TSA's fault, not Broward's. But it's not clear from the opinion whether the plaintiff properly directed this accusation at the TSA as opposed to Broward, and courts can't automatically amend your complaint to go after the right person when you accused the wrong one. (2) The only relief requested by the plaintiff was that the court release the video. Since the video was released, there's nothing else the court can do to punish Broward county for lying.
I realize a lot of this boils down to technicalities that don't really get to the substance of the actual legal claim, but that's how our legal system works (and for good reason -- the technicalities that slow down justice are the same ones that slow down injustice).
One last point -- the author is angry at the court for needless delays and so forth. I don't know the particulars here, but I will note that it's probably less that he's being singled out and more because of budget cuts. Courts all around the country have been taking ridiculously long times to resolve issues ranging from child custody disputes to patent litigation.
Are there TSA "executives?" Politicians won't dare entertain the idea of defunding them.
There is literally no solution. There exists no recourse any person alive can do to stand up against the TSA.
[N]: Stop limiting liquid carry ons. Stop throwing them away in bulk containers that make no sense if you think they are potentially dangerous. I will give you $10,000 if you make my sunscreen or toothpaste explode more violently than the as-much-as-you-like-sir laptop batteries, phones, and iPads everybody carries.
(Amusing side anecdote: There was a group of mexican school kids passing through security at the same time. Some were also selected for random screening. The random screening lady was from Spain, but she told them the policy (law?) dictated she only speak to them in English even though everybody involved in the transaction spoke Spanish better than English.)
An example: Like many other countries we have logging of telecommunications. The difference from the US is that it has been a transparent process. A bill was introduced into parlaiment, it was discussed both in the media and on the floor of parlaiment, then voted on and made into law. I know exactly what is logged, because the process is open. So does the media, and some of the major Danish tech-sites have criticised the way the logging works (it's basically useless for the police).
Personally I don't like the law, but it was an open process; I know exactly who voted yes and no, I know exactly what is being logged, I know from the media debates how the police uses this, etc.
Democracy at work.
Wouldn't one of the reason it's "useless for the police" be because anyone who has been paying attention has the exact blueprint needed to evade this logging?
* Publish the standards and practices of the government. Lawbreakers know what to avoid, ala Denmark.
* Keep the S&P secret. The law-abiding populace has no say in the rule of law, ala the US.
I'd love if there was some middle ground here, but I think there is none. In direct response to your question, it could be argued that the US's actions (specifically, the interception and storage of telecommuniques by government entities) have been completely in accordance with the law, though I won't be the one to make the argument.
E.g. the FBI is given authority to wiretap with a warrant, telecom providers are ordered to make it possible to comply with such warrants, but it's left up to the FBI and telecom providers to figure out the actual operational details.
This is, after all, why people were protesting against PATRIOT ACT, FISA Amendments Act, etc., was because they were worded to permit activities much like (if not exactly like) were revealed by Snowden.
For the non-foreign surveillance things (like DEA's "SOD") I'm not so sure they're fully legal, but if they are illegal they'd still be just as illegal under a general law as they would be under detailed S&P.
The normal judicial discovery process itself can encompass far more needless data than even '3 hops' and few people would bat an eye, because the assumption is that the investigators are sifting through the data to find the evidence instead of just capturing everything to use for nefarious deeds afterward.
Given the stated purpose of that search it even makes sense: To find connections between terrorists in cells that are directly connected you would need 1 hop, for cells directly connected through only 1 intermediary you would need 2 hops, etc.
So if you're willing to limit yourself to discovering connections between cells that directly share a connection to a given other cell then 2 hops would be fine. But somehow I don't think that's the most prudent means of uncovering connections between terrorist groups and their ongoing recruits.
FISA is the law. The PATRIOT Act is the law.
The law is corrupt.
We are. We're not allowed to lie to them, only the reverse. Isn't government awesome?
Civil disobedience is always an option. The protester at Tiananmen Square changed the world because he realized that there was recourse in doing the right thing.
Also, I think you have pretty low standards for the height of stupidity, and also for being antagonized by minor inconveniences. When I opt out, they just have me stand aside until a screener is free.
They might if they had to put up with the same crap the plebes do. But the TSA has figured out how to keep all the powerful people from having to undergo the same indignities that normal people do - they let them opt out of almost all of it for a background check and about $100.
http://www.tsa.gov/tsa-precheck
Which, I'd like to point out is ridiculous if you believe that the TSA is about actual security. They've just created a whole class of passenger that get to bypass almost all of the 'security.' Background checks don't prevent people from being conned into carrying explosives in their baggage.
The lowly TSA hourly employee was probably shaking at the thought of having to do that to a US Senator and possible consequences but he had to do it.
Powerful people have the option to work their connections to end the TSA, but that is a lot more effort than paying the $100, giving up their fingerprints and accepting the mostly hidden indignity of a background check (which, for $100 can't be more than a credit check, real background checks cost tens of thousands of dollars). So the TSA has basically taken the wind out of the sails of anyone who could hurt them but is not ideologically opposed to what they do, and frankly, the vast majority of Americans, rich and poor, haven't thought about it enough to have an idealogical position and will be happy to take the path of least of resistance.
As for all the "regular" people who sign up for pre-check, they don't in anyway negate pre-check's ability to co-opt the ire of powerful people. If some percentage of the plebes sign up, that doesn't make things any more annoying for the powerful. Most regular people won't be signing up, if you don't fly more than a couple of times a year, it usually isn't worth the effort - you get past the checkpoint and just try to forget about it while you go on with the rest of your trip.
Same argument goes for anything verboten, really. If the item actually was dangerous and you actually cared about people not having it, you wouldn't just make them throw it away if and when you caught them with it -- you'd have a real disincentive, like a fine (a good example is fresh fruit & Australian quarantine laws).
We need people like you doing this stuff, and more of us likewise. I'm working on my own technology approach to it quietly right now. In fact I need an electronics hacker to help me with the difficult bits if anyone is interested.
If I'm wrong, I'd be happy: I love the EFF. Maybe they've expanded.
Incidentally, in a separate case already in the Court of Appeals, I have the last court battle left regarding the constitutionality of the TSA's body scanners. EPIC, a bunch of attorneys, and some Harvard Law recent grads are all out of the game. My brief for that petition will be filed in about 4 weeks. Details: http://tsaoutofourpants.wordpress.com/2012/11/16/new-petitio...
The USA was unique in that it held itself up to a standard that could never quite be reached. Our founders asked a very difficult question: given that societies exist and are prone to factionalism, how do we minimize oppression by the state against even the most obnoxious individuals ( http://www.constitution.org/fed/federa10.htm ).
Their answer to Tyranny wasn't Anarchy .. Anarchy is simply a nation of many Tyrants. It was a state that controlled itself through separation of powers. Not just (as kids are taught) between the Legislature, Executive and Judicial branches, but also between the Federal and State governments, the State and Local governments etc. It was division of power by definition.
Today, much like cancer cells I don't think the perpetrators are consciously doing anything wrong, it's simply in their DNA. This is a peculiar problem: past statist diseases like Fascism, Theocracy or Communism were easy to diagnose: they said what they meant and meant what they said.
At this point, surgery or chemotherapy won't do. If the USA is to survive in any recognizable form, we are going to need to invent the analog of gene therapy. We are going to need to spread ideas and change the human DNA of our populace. I think it's happening, but could be quickly reversed if those who care for Liberty don't seriously involve themselves at some level.
She did dispense with justice. It would make more sense to me if you removed "with".
And thanks for continuing to fight this crap.
Agreed. They only get away with it because most of us feel we can't afford to put enough of the rest of our lives on hold in order to fight it. So people like Corbett who are willing to make that sacrifice and fight the good fight are really important.
If Wikileaks has taught us anything, it's that we cannot trust our leaders to appropriately classify information.
Five years seems great, but even if the period were 20 years, the fact that someday one's actions will be public will be enough to make them think twice.
I'm sure something could be worked out. Mandatory declassification review at 5 years, declassification absent an order from the President at 10 years, and mandatory declassification at 15 years (including the declassification of the declassification review and extension order at 10 years).
On one hand, you're getting out of the pat-downs and frisking every time you fly. On the other hand - you're arguably subjecting yourself to more permanent invasion of privacy by enrolling in their program.
I've only thought about doing it because the Amex Platinum card has a statement credit for it.
I'm still hesitant about it just based on principle.
Very noble goal, but my feeling is: Too late, not going to happen. Not by using any of the conventional "solutions", anyway.
http://scholar.google.com/scholar_case?case=2117854604861806...
The TSA has to provide you with an index of the materials and a legal reason for denying production of each.
Everyone, please read the actual ruling before you comment here one way or the other.