TSA threatens blogger

[poadeleted20]

Actually, think about it a bit. If something is published on the front page of the NYT, how "secret" is it now?

There are still issues. The fact that the NYT published it doesn't make it so -- it is still just an "unconfirmed press report." This has significant impact on US national and foreign policy, as it allows the governments involved to continue operating as though the information had not been officially disclosed. Keep in mind that further damage to national interests (the basic criterion for classifying information) can be limited even after the information is unofficially disclosed.

One example is the nuclear weapons situation. Back in my day, the Japanese officially prohibited US forces from bringing nuclear weapons into Japan. Frankly, I don't blame them, because the last two US nuclear weapons that had entered the country had gone off. Of course, everyone "knew" that US ships going in and out of Japan had nuclear weapons on board, but since the US government officially refused to confirm or deny the presence of those weapons, the Japanese government was able to allow those ships to visit Yokosuka without major riots or diplomatic squabbles on the grounds that they did not officially know the ships were carrying those weapons even if press reports quoting unofficial sources said they were.

Had the US ever officially acknowledged those unofficial reports, the Japanese would have had to prohibit US ships from entering Japan unless the US government officially certified the ships were nuke-free, which would have conflicted with the "neither confirm nor deny" policy of the time, and that would have created big problems. Thus, even though it was "common knowledge" that US Navy ships were carrying nukes, the US government still kept classified the presence/absence of nuclear weapons on US Navy ships.

 

[RotorAndWing]

There are still issues. The fact that the NYT published it doesn't make it so -- it is still just an "unconfirmed press report." This has significant impact on US national and foreign policy, as it allows the governments involved to continue operating as though the information had not been officially disclosed. Keep in mind that further damage to national interests (the basic criterion for classifying information) can be limited even after the information is unofficially disclosed.

One example is the nuclear weapons situation. Back in my day, the Japanese officially prohibited US forces from bringing nuclear weapons into Japan. Frankly, I don't blame them, because the last two US nuclear weapons that had entered the country had gone off. Of course, everyone "knew" that US ships going in and out of Japan had nuclear weapons on board, but since the US government officially refused to confirm or deny the presence of those weapons, the Japanese government was able to allow those ships to visit Yokosuka without major riots or diplomatic squabbles on the grounds that they did not officially know the ships were carrying those weapons even if press reports quoting unofficial sources said they were.

Had the US ever officially acknowledged those unofficial reports, the Japanese would have had to prohibit US ships from entering Japan unless the US government officially certified the ships were nuke-free, which would have conflicted with the "neither confirm nor deny" policy of the time, and that would have created big problems. Thus, even though it was "common knowledge" that US Navy ships were carrying nukes, the US government still kept classified the presence/absence of nuclear weapons on US Navy ships.

I was stationed on the USS Midway in 1978 and I also was stationed at NAS Atsugi from 1978 to 1980.

The US Navy didn't have any nuclear weapons in Japan since they were prohibited.

When the Midway left Yokuska and was clearly out in international waters a supply ship came along side and unrep'd the nukes over to the Midway. When arriving back from the cruise the same procedure applied except the nukes were unloaded back to the supply ship.

The Japanese would come aboard ship when we entered Tokyo Bay and examine it for nukes. They carried Geiger counters and were escorted throughout the ship. When cleared we were permitted to dock back at Yokuska.

 

[tdager]

Actually, think about it a bit. If something is published on the front page of the NYT, how "secret" is it now? Should the WaPo not be able to reprint the article because the information is "classified"? It's certainly no longer secret, so what interest is there in preventing republication?

Understood....and that makes sense. However the question becomes, before it was published if a blogger/press person KNEW it was classified and then published it, should they not be punished for that, even if it is no longer "secret"?

To not do so seems to open up a pandora's box.

 

[Obi Heed Kenobi]

Understood....and that makes sense. However the question becomes, before it was published if a blogger/press person KNEW it was classified and then published it, should they not be punished for that, even if it is no longer "secret"?

To not do so seems to open up a pandora's box.

That's where the "prior restraint" doctrine comes in.

Like I said, it's an area of law where my understanding is fuzzy, at best.

But, the basic idea of it is that unless there is some kind of ridiculously compelling public interest justifying a bar on publication, then the government can't prevent something from being published.

For, something like the schematics of the latest submarine indicating every single one of its potential weaknesses in exquisite detail, then I think that it's beyond any reasonable dispute that it would be ok to prevent publication of such a thing were it to be leaked. But, for something like the maximum effective range of a 40-year old howitzer, I don't think the standard would be met (remember, it's got to be ridiculously compelling rather than anything even a degree less).

 

[Obi Heed Kenobi]

That's where the "prior restraint" doctrine comes in.

Like I said, it's an area of law where my understanding is fuzzy, at best.

But, the basic idea of it is that unless there is some kind of ridiculously compelling public interest justifying a bar on publication, then the government can't prevent something from being published.

For, something like the schematics of the latest submarine indicating every single one of its potential weaknesses in exquisite detail, then I think that it's beyond any reasonable dispute that it would be ok to prevent publication of such a thing were it to be leaked. But, for something like the maximum effective range of a 40-year old howitzer, I don't think the standard would be met (remember, it's got to be ridiculously compelling rather than anything even a degree less).

PS - it's something where you look at it and wonder, "what's the point of classifying anything other than the secrets of utmost importance?"

Remember - it's a crime to disclose the secrets, so the theory is to cut them off at the pass, so to speak. Prevent the leak, rather than prevent the publication once it's been leaked.

That actually kills two birds with one stone. First, it really does address the bigger problem (the actual leak, rather than trying to close the door once the cows are out). Second, it honors the 1st Amendment (which is the first on the list for a reason).

 

[JeffDG]

If I recall properly, it's still illegal to be in possession of a classified document (I mean the actual document with the "Secret" stamp and everything), so if your intrepid NYT reporter were caught with that piece of paper in hand, it's not a 1st Amendment issue then, he's in possession of stolen government property.

 

[wabower]

46 posts later and I'm still wondering why he answered the door.

 

[TMetzinger]

There's Classified information and there's unclassified.

Classified is protected and managed under an entirely different set of rules.

Even "For Official use Only" is not "classified."

It appears they are ginning up some sorta quasi-classified category for this doc.

In cases like this, where SBU (Sensitive but Unclassified) information is leaked, it is still a problem for the agency that leaked it, and they have to do an investigation. The bloggers weren't in trouble for publishing it, though they could have been in trouble for failing to assist in the investigation to find who leaked it to them in the first place.

Now, I'm not condoning the heavy-handed tactics the TSA took - they were completely inappropriate, since the information was already public knowledge because travellers had already discussed the changes based on their own experiences. A more reasonable approach would have been to serve the subpeonas and wait. If there was a compelling need to search the computers of the journalists then the TSA should have pursued a search warrant. If they were trying to actively stop the horse from getting out of the barn, then more agressive tactics might have been appropriate, but that clearly wasn't the case.

The TSA internal inspectors have a duty to find and punish the TSA employee who leaked the actual documents - that person or persons signed non-disclosure agreements as a condition of their employment. They may face criminal or administrative or personnel actions as a result. I bet the legitimate recipients (airlines and airports and so on) also signed up to keep it private. So the investigation is a legitimate thing in my opinion, although someone over there needs to develop some judgement.

Oh, and on the whole classified thing - the US press generally in the past had shown a willingness not to publish information when given a reasonable explanation on why publishing would harm national security. But the gov't has sometimes been ridiculous on what information is harmful, and the press sometimes has been ridiculous on publishing anyway. Trust has broken down on both sides as a result, and it's pointless to try and figure out which side screwed the other side first.

My observations lead me to believe that the mass media has completely abandoned the ideas of objectivity and context in their need to attract and retain consumers. I believe that this has gotten worse over time and is in a horrid downward slope that is only getting steeper.

 

[Kelvin]

46 posts later and I'm still wondering why he answered the door.

Because the TSa guy is sharp...He remembered being taught to announce himself as a delivery guy from his pizza delivering days...

 

[bbchien]

Good argument for PGP on your hard drive.

 

[JeffDG]

Because the TSa guy is sharp...He remembered being taught to announce himself as a delivery guy from his pizza delivering days...

What do you mean "pizza delivering days"...probably still does it as a part time job...better to say he's a pizza delivery boy than admit he works for TSA.

 

[TMetzinger]

I was stationed on the USS Midway in 1978 and I also was stationed at NAS Atsugi from 1978 to 1980.

The US Navy didn't have any nuclear weapons in Japan since they were prohibited.

When the Midway left Yokuska and was clearly out in international waters a supply ship came along side and unrep'd the nukes over to the Midway. When arriving back from the cruise the same procedure applied except the nukes were unloaded back to the supply ship.

The Japanese would come aboard ship when we entered Tokyo Bay and examine it for nukes. They carried Geiger counters and were escorted throughout the ship. When cleared we were permitted to dock back at Yokuska.

Seriously, assuming what you just said is correct, is it now unclassified?

 

[Cap'n Jack]

<SNIP>
One example is the nuclear weapons situation. Back in my day, the Japanese officially prohibited US forces from bringing nuclear weapons into Japan. Frankly, I don't blame them, because the first two US nuclear weapons that had entered the country had gone off. Of course, everyone "knew" that US ships going in and out of Japan had nuclear weapons on board, but since the US government officially refused to confirm or deny the presence of those weapons, the Japanese government was able to allow those ships to visit Yokosuka without major riots or diplomatic squabbles on the grounds that they did not officially know the ships were carrying those weapons even if press reports quoting unofficial sources said they were.
<SNIP>
quote]

Fixed that for ya!

 

[RotorAndWing]

Seriously, assuming what you just said is correct, is it now unclassified?

yep.....


The Japanese were fully aware of our procedures since we worked closely with the JMSDF. They didn't have any issues with it as long as we off loaded before entering their territorial waters and the inspectors were allowed to do their inspection.

 

[Obi Heed Kenobi]

If I recall properly, it's still illegal to be in possession of a classified document (I mean the actual document with the "Secret" stamp and everything), so if your intrepid NYT reporter were caught with that piece of paper in hand, it's not a 1st Amendment issue then, he's in possession of stolen government property.

I'm just not familiar enough with the law governing classified documents to be able to say. Assuming that law does exist (and I have no reason to think that it doesn't), then I think you're right - it's not a 1st Amdmt. issue (unless freedom of the press were somehow extended to protect it).

 

[Obi Heed Kenobi]

... The bloggers weren't in trouble for publishing it, though they could have been in trouble for failing to assist in the investigation to find who leaked it to them in the first place.
...

Remember the case with that woman who worked for the CIA a few years ago? This was a corollary issue arising from it - several reporters refused to disclose their sources, and some of them did some time in detention on something like contempt of court. I don't remember the outcome in this particular case, but I do know that there was a legislative push to give journalists immunity against disclosing sources. I don't know the result of that push. Also, there are potential constitutional issues re: freedom of the press, and whether that extends, of itself, to giving reporters immunity against disclosing sources - again, I don't know the actual law on the subject (or if any such law exists - it's probably one of those grey areas).

For whatever that's worth....

My observations lead me to believe that the mass media has completely abandoned the ideas of objectivity and context in their need to attract and retain consumers. I believe that this has gotten worse over time and is in a horrid downward slope that is only getting steeper.

Agreed.

 

[sba55]

46 posts later and I'm still wondering why he answered the door.

Me too. Or why he didn't just take the subpoena and told them to get lost. Why waste hours talking to them and then even voluntarily hand over your laptop? Get their names, take the subpoena, call your lawyer, then call the press. Easy.

 

[Obi Heed Kenobi]

Me too. Or why he didn't just take the subpoena and told them to get lost. Why waste hours talking to them and then even voluntarily hand over your laptop? Get their names, take the subpoena, call your lawyer, then call the press. Easy.

Because the vast majority of people, including well-educated ones, crap their pants when confronted by the police in these types of situations.

Even I, and I'm pretty well-versed in things like the 4th Amendment, would think twice if I've got some guy from a government agency with a reputation for getting its way saying "this subpoena means I can do X, Y, and Z." Keep in mind that, standing at my front door, I can't go look up the Federal Rules on Westlaw, I can't look up the United States Code to see if the TSA has the authority to issue its own subpoenas, and so forth.

Even if I got a call from someone I knew asking my opinion on what to do, I wouldn't be able to give it on the spot - I'd need at least 30 minutes to give an answer with even a minimal degree of reliability; if you've got someone saying your bleep is grass if you don't do something right away, that's just not good enough.

That's just the way it is, and any competent law enforcement types know that.

 

[JeffDG]

I can't go look up the Federal Rules on Westlaw, I can't look up the United States Code to see if the TSA has the authority to issue its own subpoenas, and so forth.

Yes, you can!

http://www.androlib.com/android.application.com-azi-federal_rules-jmDw.aspx

 

[sba55]

Because the vast majority of people, including well-educated ones, crap their pants when confronted by the police in these types of situations.

Even I, and I'm pretty well-versed in things like the 4th Amendment, would think twice if I've got some guy from a government agency with a reputation for getting its way saying "this subpoena means I can do X, Y, and Z." Keep in mind that, standing at my front door, I can't go look up the Federal Rules on Westlaw, I can't look up the United States Code to see if the TSA has the authority to issue its own subpoenas, and so forth.

Even if I got a call from someone I knew asking my opinion on what to do, I wouldn't be able to give it on the spot - I'd need at least 30 minutes to give an answer with even a minimal degree of reliability; if you've got someone saying your bleep is grass if you don't do something right away, that's just not good enough.

That's just the way it is, and any competent law enforcement types know that.

Sure, but educated people will also know that law enforcement counts on you not knowing your rights.

I don't know much about these things, but I'm almost 100% sure that a subpoena doesn't allow law enforcements to force entry into your house. I would also have guessed that a subpoena provides for some reasonable time to collect the information requested, and that less than a day isn't reasonable. Based on that, I would have asked them to give me the subpoena, and than I would have told them to leave. If they didn't, I would have called my lawyer on the spot and I suspect that the publicity they would then receive from the press that would be sure to arrive rather quickly wouldn't be in their best interest.

I don't know why people don't stick to their guns more. If you're right, being assertive usually gets those kind of people off your back.

-Felix

 

[Obi Heed Kenobi]

Yes, you can!

http://www.androlib.com/android.application.com-azi-federal_rules-jmDw.aspx

You've got to be kidding me....

 

[ScottM]

The linked article specifically said that it was NOT classified.

And that was my point. He stated later that it was a misphrased point. I am cool with that, I know it happens.

 

[Palmpilot]

Perhaps the appropriate thing to do would have been to sit on the front porch reading the subpoena to find out what it required him to do, and do that, rather than answering verbal questions from the agents.

TSA = The SS of America

 

[Dave Siciliano]

TSA withdraws subpoenas. Notice the reason given.

I think they could benefit from perusing this which should become an essential reference material for them; although, they should get the 'hardback' edition:
The Complete Excuses Handbook: The Definitive Guide to Avoiding Blame and Shirking Responsibility for All Your Own Miserable Failings and Sloppy Mistakes (Paperback)

http://tinyurl.com/ybzc4tf

Best,

Dave
===================================================


On his Web site Thursday night, Elliott said he had declined to turn over his e-mails or computers when federal agents appeared at his house armed with a subpoena Tuesday night. He said that he had received word that the subpoenas were being withdrawn hours after the TSA agreed to a two-week extension on its demand for his cooperation with its investigation. On his blog, Elliott wrote that he had also "signaled" his intention to the agency to "challenge the subpoena in federal court next week."

Elliott said that both he and his attorney, Anthony Elia, were pleased by the TSA's reversal.

On his Web site, Elliott posted a letter from John A. Drennan, deputy chief counsel of enforcement for the TSA, informing Elia that the subpoena was being withdrawn because it was "no longer necessary."

http://tinyurl.com/yjzzvcn

 

[Dr. O]

Any scumbag lawyer can issue a "subpoena" - they all have the 'fill-in-the-blank' forms in their desk - you can order them over the internet fer cripes sake... They are for the gullible... Read the signature... If it is not signed by a judge with the court seal on it - it's just toilet paper...


AS far as the TSA marching in, unless they are willing to place me under arrest, handcuff me, and take me downtown and book me, the conversation is over (either way)... IF the situation is serious enough for them to have an actual arrest warrant (signed by a JUDGE), there won't be any foreplay, they will simply walk up and inform you that you are under arrest... If they stand around making threats, then they are blowing smoke and don't have a legal leg to stand on - tell em to pizz off...

denny-o

 

[Dave Siciliano]

From the LA Times

"The administrative subpoena — a demand for information issued without a judge's approval — is a civil, not a criminal document.

"Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said her organization is supporting Elliott.
[...]
"Dalglish said she could not remember the last time an administrative subpoena had been served on a reporter in last decade."

Best,

Dave

 

[RJM62]

For some reason, every time I read of of these articles about TSA's latest antics, I find myself being reminded of Sgt. Schultz:

​

Is it just me?

-Rich

 

[ScottM]

For some reason, every time I read of of these articles about TSA's latest antics, I find myself being reminded of Sgt. Schultz:



Is it just me?

-Rich

I think it may be just you Rich. Sgt Schulz was far more professional, competent, and proficient at his job than any TSA lacky

 

[Palmpilot]

This link to the text of the subpoena was posted on the red board:

http://www.elliott.org/blog/full-text-of-my-subpoena-from-the-department-of-homeland-security/

I see that it doesn't explicitly say that he had to turn over his computer, but rather to "produce and permit inspection and copying of the records described below...All documents, emails, and/or faxsimile transmissions (sic) in your control possession or control concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009."

I wonder if he could have just given them copies of the relevant files. I sure wouldn't want to turn over my computer to someone if I didn't have to, especially since they reportedly screwed it up.