Holiday Wishes from the TSA

I rip the certified letter open and read it standing in my office. My jaw unconsciously tightens and I move from depression to rage. I take the letter (similar to this one) to my scanner. Something this threatening and extreme should go directly to my lawyer. As I flip the paper over, my eye catches the word “WARNING” in tiny print at the bottom of the page. I withdraw the letter from the scanner’s glass, and read the entire warning:

WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. Parts 15 and 1520. No part of this record may be disclosed to persons without a “need to know,” as defined in 49 C. F. R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty of other action. For U. S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 C. F. R. parts 15 and 1520.

Are you kidding me? What about “The Incident,” as it has come to be known by my family, could possibly impact national security. It took place in a public area in front of a herd of onlookers. I have no national secrets, and quite frankly don’t want any. Everything I know about airport security, is known by everyone who has been to an airport in the last three years.

I google 49 C. F. R Parts 15 and 1520 and discover it is

defined by Executive Order 12968, or to other sensitive unclassified information that is not SSI [Sensitive Security Information], but that nonetheless may be exempt from public disclosure under the Freedom of Information Act.–Dept of Transportation

So you can’t even get to the details of my case with a Freedom of Information Act. I scan further down thinking the statute can not possibly apply to me. Mostly it applies to people who work for the government and actually do have sensitive information about passengers or access to secrets and technology. Then I find the part that applies to me:

I also find out that I have a legal duty to guard this threatening piece of paper with my life:

Well that was pretty vague. In other words, the penalty is whatever they want it to be and a violation is what ever they say it is.

I wrote the first post about “The Incident” weeks ago-before this very public event became “Sensitive Security Information”. It got picked up by national news agencies and spread all over the web. Excerpts were read on a national radio show. Good luck retrieving that.

So it appears that my First Amendment rights truly have been muzzled. I can not share with you the details of “The Incident”, although they are not hard to come by.

I can, however, discuss old tort law: Rendon vs. TSA.

Mark Rendon arrived at the Cleveland International Airport screening in July of 2002. He was late, and in danger of missing his flight. At that time, only metal detectors were used and when he went through the detector, it alarmed. He looked down to discover he still had on his watch. He laughed at his mistake, took off the watch and turned to go back through the metal detector. The screener threw up his arm, barring Mark’s entrance. He explained that once the alarm goes off, Mark couldn’t use the metal detector again. He had to wait to be hand-wanded. Several minutes went by and no one came to wand Mark.

The plaintiff was late for a plane, so he started getting a bit antsy, and said a few things he should not have said.  The opinion lists the plaintiff’s worse outbursts as “this is bullshit, man” and “if you don’t like profanity, you are in a wrong line of work.”  Eventually, the screener had it, so he called the supervisor, who called a cop, and the guy was removed from the screening area.  —The Appellate

Not only did he miss his flight, but Rendon was fined $700 in civil penalties by an administrative law judge “for interfering with an airport screener in the performance of his official duties,” in violation of § 1540.109.

Acting pro se, Rendon appealed the administrative law judge’s fine to someone known as a TSA “Decision Maker” (a title for which we could not find any legal definition in Title 49 of the C.F.R.); and, when the Decision Maker upheld the $700 fine, Rendon appealed to the Sixth Circuit.

Essentially, Rendon argued that § 1540.109, as applied, violated his First Amendment right to freedom of speech; and that the regulation was both overbroad and unconstitutionally vague. The Government, in turn, did its best to convert the case from a First Amendment challenge to one involving a violent and dangerous menace who threatened the safety and security of the entire country. It even produced three witnesses who testified about Rendon’s use of profanities…FedCrimeLaw

At issue in the case is constitutionality of 49 C.F.R 1540.109, which prohibits “interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties.”  The court concludes the regulation was not content-based, as applied to the plaintiff, because it prohibited conduct (interfering with a screener).  With all due respect to the Court, I just don’t see what conduct (as opposed to speech) was punished.  The most can be said about the plaintiff’s behavior was that he was loud and using profanities.  If that is interference, I do not see what speech directed to a screener would be allowed under these circumstances.

Furthermore, at least as applied in this case, the regulation seems vague.  According to the Court, good-faith grumbling about TSA is o.k., even laced with profanities, but speech resulting in interference with performance of duties is prohibited.  Unlike the Court, I am not entirely clear where the imaginary line between allowed speech and prohibited conduct would lie in that situation.  Like the plaintiff, I read the regulation as saying that whenever speech gets to the TSA screener to a point where he or she are annoyed and could no longer do their job, it rises to a level of interference.  But isn’t that a textbook definition of constitutional vagueness?The Appellate

Well at least I didn’t use profanity. So I sit down to answer for my specific accusations, at my specific airport, on my specific day, none of which I can share with you. What I can share are my comments at the end of the letter which are broad and relate to how TSA relates to the law and its customers.

You might think that my fears of leaving an area where people could see me were unwarranted. I would point out, as soon as I was out of that area, I was physically abused by the police to the point of cutting my skin and leaving bruises on my body. They did this despite the fact that I was walking with them without resistance. Granted, that was not your agent and, therefore, not your problem. However, it does speak to the reality that people in authority who are angry can be dangerous when no one else is looking, and my concerns were rational given the hostility your agent showed.  

Furthermore, if your intention is to make the checkpoint a First Amendment free zone, why are you asking my opinion? Every time I decline the scanner, your agent asks me why, and then goes on to advertise for the scanners. Quite frankly, if your agents are so upset by unscripted answers to questions, why ask? Was I supposed to whisper my response? Just plane respond differently? It is clear that you don’t care about my feelings on the subject, so why do you keep asking?  It feels like you are bating me with the question. It is as though you are actually punishing me for my thoughts and not my acts.          

Some of the comments on the original post, advised that I should have researched the TSA more before I did whatever it was that I did. Perhaps they are right. What started as an exercise to demonstrate to myself that everything was still alright, has become nightmarish proof that it is not.