The police arrest you for reading the Constitution in a public space during an Occupy demonstration. Later, you get a letter saying that reading the Constitution in a loud voice, in that place, at that time, broke a small statute of the law, and therefore you will be fined $1,500. If you disagree with this assessment, you can plead your case in a letter to the Chief of Police at the station where the arresting officer works. If they don't hear from you in, oh, I don't know, 20 days, then they will assume you agree with the fine.
Oh, and by the way, everything in their letter is top secret and you have to get the Chief of Police's permission to share it with your lawyer, your husband or your...well let's say readers.
What? You have a problem with that?
So do I...
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:
Sensitive Security Information
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:
(6) Security inspection or investigative information.
(i) Details of any security inspection or investigation of an alleged violation of aviation or maritime transportation security requirements of Federal law that could reveal a security vulnerability, including the identity of the Federal special agent or other Federal employee who conducted the inspection or audit.
(ii) In the case of inspections or investigations performed by TSA, this includes the following information as to events that occurred within 12 months of the date of release of the information: the name of the airport where a violation occurred, the airport identifier in the case number, a description of the violation, the regulation allegedly violated, and the identity of any aircraft operator in connection with specific locations or specific security procedures. Such information will be released after the relevant 12-month period, except that TSA will not release the specific gate or other location on an airport where an event occurred, regardless of the amount of time that has passed since its occurrence. During the period within 12 months of the date of release of the information, TSA may release summaries of an aircraft operator's, but not an airport operator's, total security violations in a specified time range without identifying specific violations or locations. Summaries may include total enforcement actions, total proposed civil penalty amounts, number of cases opened, number of cases referred to TSA or FAA counsel for legal enforcement action, and number of cases closed.--Dept of Transportation
I also find out that I have a legal duty to guard this threatening piece of paper with my life:
Take reasonable steps to safeguard SSI in that person's possession or control from unauthorized disclosure. When a person is not in physical possession of SSI, the person must store it a secure container, such as a locked desk or file cabinet or in a locked room.--Dept of Transportation
Okay, so what if I slip up and some national secret about The Incident gets past my security blockade?
1. Sec. 15.17 Consequences of unauthorized disclosure of SSI.
Violation of this part is grounds for a civil penalty and other enforcement or corrective action by DOT, and appropriate personnel actions for Federal employees. Corrective action may include issuance of an order requiring retrieval of SSI to remedy unauthorized disclosure or an order to cease future unauthorized disclosure.--Dept of Transportation
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?--
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.
Since my incident with your agent, I have been more acutely aware of the relationship between citizens and authority. I am sure you, too, have seen some disturbing video on the news of late. I think this sort of thing happens when we blur the lines of what is permissible and what is not. Both the citizenry and the people in authority feel the need to test those lines when they are not clearly demarcated.
Unfortunately, the TSA resides in a poorly demarcated area of the rules. I do understand that the Second and Fourth Amendments are abridged or negated in Airport Security Checkpoints. It is a surprise to me that you are claiming the First Amendment is also void there. After all, it takes no more time to say:
Wow, now that you have explained to me how safe the scanner is according to the company which makes it and sells it to the tax payers for a lot of money, I can't wait to jump in it and be microwaved.
I doubt your agent's response to those words (or similar less sarcastic ones) would have been the same as they were to the Fourth Amendment.
FYI: CISPES v. FBI, 770F.2nd 468, 474 (5th Cir. 1985) (holding that statute that criminalized the act of willfully intimidating a foreign official in the performance of his duties did “not permit the government to discriminate on the basis of the content of expression. To the extent that it applies . . . to protected conduct, it is not a restriction on any particular message. It merely proscribes actions of a[n] . . . intimidating nature directed at any protected official”)
For my own education, I would like some clarification of the TSA's position. Does the TSA actually claim some abridgment of the First Amendment, and if so could you provide the statute? I realize you probably get quite a few letters that may be less than sincere, but I am asking this question in good faith. My intent was not to actually break the law on that day but to exercise it. If I have broken a law it was unintentional and due to lack of knowledge of any prohibition of First Amendment rights at the airport.
I was entirely unaware that the TSA also enjoys a status outside of the Sixth (trial by impartial jury, ability to confront accusers, assistance of counsel), Seventh (in matters over $20, right to trial by impartial jury) and Eighth Amendments (no excessive bail or fines), as your letter implies. If you could also provide legal documentation to this effect.
If you are indeed claiming that checkpoints are essentially free of any Constitutional restraint, I doubt that I am the only person in the United States unaware of your status. I think most people realize the Second and Fourth Amendments do not apply there, but I do not know a single person who thought the First, Sixth, Seventh and Eighth did not apply. If that is your claim, I think the TSA should embark on an educational campaign to assure no one else inadvertently breaks the law at your checkpoints.
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.
Finally, according to your letter, the events of [redacted to comply with 49 C.F.R. Parts 15 and 1520] are now national security secrets. I spent much of my holiday weekend trying to determine what that means. There is an arrest and a court case attached to these events. I consulted a lawyer for my defense weeks before I got this letter and of course told him the story in as much detail as possible. The two laws you quote contradict each other on whether this is permissible without your written express permission.
I assume the police officer involved and the TSA agent did not get similar letters from you. A judge, courtroom or public hearing are excluded from the list of people who are “need to know” according to the law you quoted. That would mean that my accusers are free to testify against me, but I would not be allowed to testify in my own defense. Is it the TSA's intention to so hobble my defense at a public hearing?
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.
One day America will wake up and learn that it got precisely what it wished for: a new breed of bureaucratic despots with near-total, subjective power over all sorts of freedoms that affect the way in which we live. Sadly, by the time America does wake up, it will probably be too late to reverse course and put a stop to the tyranny of the badge-wielding bureaucrats who operate under such vague and all-encompassing laws.--FedCrimeLaw