The TSA Is Legally Allowed to Lie to Us

The TSA does not have to tell the truth:

Can the TSA (or local governments as directed by the TSA) lie in response to a FOIA request?

Sure, no problem! Even the NSA responds that they "can't confirm or deny the existence" of classified things for which admitting or denying existence would (allegedly, of course) damage national security. But the TSA? U.S. District Judge Joan A. Lenard granted the TSA the special privilege of not needing to go that route, rubber-stamping the decision of the TSA and the airport authority to write to me that no CCTV footage of the incident existed when, in fact, it did. This footage is non-classified and its existence is admitted by over a dozen visible camera domes and even signage that the area is being recorded. Beyond that, the TSA regularly releases checkpoint video when it doesn't show them doing something wrong (for example, here's CCTV of me beating their body scanners). But if it shows evidence of misconduct? Just go ahead and lie.

EDITED TO ADD (9/14): This is an overstatement.

Posted on September 10, 2013 at 6:55 AM • 35 Comments

Comments

Paul RenaultSeptember 10, 2013 7:45 AM

So, they don't even need to tell the truth to the body that governs them either? Heck, not only is the security really just theater, the oversight is just theater...

LennieSeptember 10, 2013 7:45 AM

This is why after 9/11 I decided not to travel to the US, especially not fly.

I don't live in the US and I don't want to deal with them. I've also been weary of US companies, especially those that are publicly traded. I've tried to be selective in the data I give to my own government, which is really hard, if not impossible. Try getting a passport so you can visit a neighboring country, they have biometrics these days. Should I not travel at all ?

I felt I was being a bit paranoid, turns out, it was a lot worse than I thought. :-(

tppSeptember 10, 2013 7:58 AM

This follows the same US Government pattern where leaks and other statements in favor of the Government action are "legal" (as in, nobody will get investigated or prosecuted), but leaks or statements showing the Government in a bad light or even exposing the Government's illegal activities will get the witch hunt treatment.

Furthermore the US Government is purposely leaking favorable information prior to important actions or events (for example before going to war with Iraq).

This is nothing but a Government propaganda machine at work.

And all the while The Most Transparent President Ever parades himself in front of journalists as some sort of champion of freedom and liberty. The whole freedom and liberty bit is a joke.

In what sort of democratic country can the Government claim they don't have to reveal their wrong doing against their citizens?

TomSeptember 10, 2013 8:53 AM

I think all US law enforcement is legally allowed to lie. Police are allowed to lie to obtain confessions, for example. I think there's been court decisions to this effect.

TimHSeptember 10, 2013 8:59 AM

Tom:
LEOs can lie under many circumstances (and it is an offence to lie to them).

However, TSA are not law enforcement...

NobodySpecialSeptember 10, 2013 10:14 AM

@tpp - Obligatory Yes minister quote:

That's another of those irregular verbs, isn't it?
I give confidential press briefings;
you leak;
he's being charged under section 2A of the Official Secrets Act.

Anonymous35September 10, 2013 10:37 AM

I find the writing of 'TSA Out of Our Pants!' a bit low on facts and high on sensation.

The actual court document does not say that the TSA can lie in response to FOIA requests. The case has been dismissed because there is nothing left to rule about.


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—which seeks only injunctive relief “requiring the production of all documents requested” (First Amended Complaint, D.E. 20 at 15)—is now moot, as the TSA has produced the requested footage subject to appropriate redactions. On this basis the Court grants summary judgment in favor of Broward.

Rob PSeptember 10, 2013 11:09 AM

And they wonder I opt for a gropedown, in spite of their assurances that the machines are completely safe.

TheNewWorldOrderSeptember 10, 2013 11:21 AM

The new world order has been a blue sky dream for ages among those that want ultimate control and foment war for strictly that purpoose. It hasn't been until the last 20-30 years with computers, electronic devices, the internet, and the equivalent of the PNAC "...another pearl harbor...", that the goal may soon be achieved. Orwell had no idea, or maybe he was among the planners. If you have ever wondered why the internet, based on TCP/IP, is so "weak" from a security standpoint, wonder no more...it was probably designed that way and will never be replaced for that reason (despite being a military project or because it was a military project).

The ultimate implementation of Skinner's Box is here to stay.

thecaseforpeaceSeptember 10, 2013 12:11 PM

Fascism has corrupted all three pillars of power in the United States (money, monopoly on violence, and control of ideas) Those pillars are crumbling and the ones in charge know this, and they're scared. The path the United States is on is as old as history. Every empire that tries to hold power eventually turns it's tools of violence and empire inward to maintain control. This was the case in Rome, Mesopotamia, and every other empire who's day had ended.

The US Government may try to stomp dissent, to lie, to use it's monopoly on violence to crush those who don't agree with it, but doing so simply brings it closer to their own demise.

Seneca wrote in De clementia: "Repeated punishment, while it crushes the hatred of a few, stirs the hatred of all... just as trees that have been trimmed throw out again countless branches."

yout ube (dot) com /v/8Zq4f6WYmHU

Douglas KnightSeptember 10, 2013 1:49 PM

A simpler explanation is that judges write nonsense when confronted by people without council.

David CSeptember 10, 2013 2:36 PM

Anonymous35, you left out the part where the judge said that state agencies probably can lie at the behest of the 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.

It wasn't a binding part of the ruling, but...

He also concluded that District Courts didn't have jurisdiction to review TSA's determinations about "sensitive security information," but that Appeals Courts did. Maybe it will get appealed. I'll be interested to see how a court that does have jurisdiction looks on claims like "the existence of video footage from our plainly-visible, labelled security cameras is sensitive security information that must not be disclosed."

I'd really like to see an equivalent of the Third Party Doctrine for government actions: i.e., a ruling that the government cannot have any legitimate secrecy interest in things that it does in full view of third parties who want to disclose it. Like, say, torturing them (to pick a recent example)...

thecaseforpeaceSeptember 10, 2013 4:24 PM

@aaaa

Yes, the University apologized, but the NSA told them to get it taken down. Censorship is here, next stop...

Surveillance--->Censorship---->Death Squads
^
(You are here)

the case for peaceSeptember 10, 2013 4:25 PM

The marker is supposed to be in the middle of censorship. That's what I get for trying to be cute.

Anonymous servicememberSeptember 10, 2013 4:45 PM

I read the court document. I hardly see this as a conspiracy or anything to get excited about.

"Broward sought review by the TSA. (Capello Aff., D.E. 93-3 ¶ 8.) At the time that Broward consulted with the TSA, the TSA’s position was that the footage requested by Plaintiff contained non-disclosable SSI and that the existence of any footage itself constituted SSI as well. (Id. ¶¶ 8, 9.) On this basis, Broward informed Plaintiff that the requested video footage did not exist, and
even if it did, it would not have been disclosable. (Cooper Decl., D.E. 96-1 ¶ 7.)"

So the county goes to TSA to ask for guidance and the TSA says you can't even acknowledge existence of the video. Obviously that wasn't the end of the handling of this issue, though, because eventually the government (I don't know if it was county or federal or both) relented and provided redacted video.

I think the lesson here is: If you think you are special and don't have to comply with TSA security screenings... well, you're not... and you probably won't be allowed to board.

This guy refused two paths (scanner and pat down) to get through the screening. There is nothing that played out (based on the court document) unpredictably here. We can all debate the effectiveness of TSA security procedures, but you shouldn't be surprised by the results if you refuse to comply with screening procedures. If you want to complain about something, try suggesting a better TSA screening process.

MingoVSeptember 10, 2013 5:59 PM

Multiple comments indicated that law enforcement agents can lie. That's true, but in limited circumstances. If they lie during a trial, then they've committed the crime of perjury. Government agencies or all types are required by law to fulfill Freedom of Information requests unless they can show security reasons for not doing so. Even then the law states that, if possible, redacted versions of the documents should be released.

A court ruling that a government agency does not have to comply with a FOIA request even if the requested documents are not classified is a travesty. My guess is that the District judge is angling for a higher appointment.

Anonymous ServicememberSeptember 10, 2013 7:19 PM

@MingoV

- A court ruling that a government agency does not have to comply with a FOIA request even if the requested documents are not classified is a travesty.

Two points:
1) This court ruled with the government because the government ALREADY provided the plaintif the video in question. No travesty here.

2) Some unclassified information is not subject to FOIA release. In this case, the names of low level individuals working the issue were not subject to release. Jonathan Corbrett's blog includes a link to the court ruling, which does a decent job highlighting relevant FOIA exceptions.


You don't have to be a lawyer to follow the ruling, its logic or the law it cites.

Coyne TibbetsSeptember 10, 2013 7:32 PM

I have to say I'm puzzled by his astonishment. How many times have we read about a lawsuit being filed against LEO's being hampered by loss of a video/audio/document/or other physical evidence?

From what I see, that's more the norm than the exception: It's the first line of defense that LEOs adopt to avoid accountability.

Anonymous ServicememberSeptember 10, 2013 7:43 PM

@Coyne Tibbets

I have to say I'm puzzled by his astonishment too. After all, the government gave him the video he requested in the FOIA (read the document).

From what I can see in Bruce's blog lately, people don't really read the source material... they just go on about how the government doesn't do what it should do, even when the source material says otherwise.

Dirk PraetSeptember 10, 2013 8:35 PM

From reading the court document, I believe the title of the article should read "The TSA lies to us" or "The TSA thinks it can lie to us" rather than "The TSA Is Legally Allowed to Lie to Us".

That last statement will only be true if the verdict is upheld by the U.S. Court of Appeals for the 11th Circuit, where plaintiff will be filing a notice of appeal. At the heart of the matter is the judge's ruling that once a document is labeled “Sensitive Security Information” by the TSA, the U.S. District Court loses its power to review that determination, at which point the U.S. Court of Appeals becomes the proper forum. In other words, the final decision can still go either way, beit that the TSA may very well know that they totally overclassified the video footage as SSI. I see no other reason why they (probably reluctantly) provided it in redacted form once plaintiff took it to court, thus defusing a key part of the plaintiff's case.

The lesson to be learned here - once again - is that the government and its agencies have much more time and resources to play the legal game than the average individual has. Like it or not, but that's the way the system works, and not just in the US. It's easy and convenient to abuse your power or overstep your authority in the knowledge that anyone challenging you is facing a long and costly uphill battle the outcome of which is never certain and may cost you more than you can afford. And even if you win, the punitive damages (if any) are born by the tax payer. It's ugly, I know.

AngusSeptember 10, 2013 9:21 PM

Speaking about the difference between being forced not to tell something and being forced to tell a lie. Since its start SilentCircle posted on the top of its privacy statement the number of warrants it received so far and the number of agencies these involved. Until recently these numbers were 0 and 0. Few days ago, these numbers disappeared and were not replaced by new ones. What to make of that?

www.theguardian.com/technology/2013/sep/09/nsa-sabotage-dead-mans-switch

DBSeptember 11, 2013 12:50 AM

Is that sorta like how Clapper is legally allowed to lie to Congress now too? (before anyone tells me "he isn't": then why isn't he charged with a felony for freely and openly admitting to felony perjury? therefore.. my only conclusion is he must be allowed...)

aaaaSeptember 11, 2013 4:33 AM

@thecaseforpeace How do you know NSA told them to take down the blog? People overreact these days so it is quite possible that NSA had nothing to do with it. It is quite possible that University lawyers or whoever panicked on their own.

That blog post contains only his commentary and that commentary is not even too strong. short and does not contain any new info. This blog contains much stronger commentary and was not shut down. So are a lot of other blogs all around the web.

NSA had no probably reason to go against that one post.

Random832September 11, 2013 9:06 AM

Actually, I've never understood "can't confirm or deny". What's the benefit of this over simply denying everything that's not on the list of things they can confirm? I mean, unless you "can't confirm or deny" everything, no matter how absurd, up to and including aliens in area 51 and 9/11 conspiracy theories, there's some information leakage by the boundary between what gets this response and what you're willing to deny.

Random832September 11, 2013 11:00 AM

@Angus, I would be concerned that the implementation they are suggesting (an automated server, RSS feeds, public keys) is too far removed from a notice written in plain text in a natural language, for the distinction between "not telling a lie" and "telling the truth" to be preserved.

The fact that it's explained, and presumably remains so even when one company's "notice" is gone, is the problem: It's likely a lot harder to defend "If the following space is blank, then we've been contacted by the NSA: ." than a bare blank space.

Coyne TibbetsSeptember 14, 2013 12:01 AM

@Anonymous Servicemember, I read the source material, and am well aware that the CCTV video was given to him by the government.

But the court ruling stands and will affect all future interactions with the TSA, by everyone. So when the TSA probes your cavities during your next trip and you want to sue, don't be surprised when TSA looks your lawyer blankly in the eye and says, "What CCTV video?" Because they said they have the right and U.S. District Judge Joan A. Lenard agrees; and that matters, despite the fact that Mr. Corbett got his video.

I wrote above that I was puzzled that he would be astonished. History shows that LEOs (including the secret agencies) routinely conceal/deny/seal or destroy evidence of their own wrongdoing. Courts routinely, and disingenuously, allow the LEOs to keep doing that.

So why should Mr. Corbett be surprised that TSA would assert the right, in court, to do what other LEOs already do routinely?

R DaneelSeptember 15, 2013 8:38 PM

Tom said: "I think all US law enforcement is legally allowed to lie. Police are allowed to lie to obtain confessions, for example. I think there's been court decisions to this effect."

Um, sorta. They are allowed to lie to you during an interrogation. That is why you should never talk to the police without a lawyer.

Or the FBI.

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