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This post was first published by Edward Hasbrouck on www.papersplease.org.

There are no legally binding rules (other than those provided by the federal Privacy Act, the U.S. Constitution, and international human rights treaties, all of which the TSA routinely ignores) specifying the limits of TSA authority at checkpoints, what you do and don’t have to do, and which questions you have to answer or orders you have to obey.

So the traveling public, and public interest organizations like the Identity Project with which I work as a consultant on travel-related civil liberties issues, have been reduced to trying deduce the de facto “rules” from the TSA’s internal procedures manuals and directives to its staff, using the Freedom of Information Act (FOIA) — to the extent that we’ve been able to find out what documents to ask for by name, and that the TSA has been willing to release them, usually in incomplete and censored (“redacted”) form.

Now the TSA has done travelers a favor by posting an unredacted version of the document of which only portions of an earlier version were previously released in response to our FOIA requests, and the complete current version of which is the subject of one of our current FOIA requests: the TSA’s “Screening Management Standard Operating Procedures (SOP)”.

In posting the document on a federal government website (fbo.gov, for “Federal Business Opportunities”) as part of the public specifications for bidders on a TSA contract, the TSA added red outlines highlighting certain portions of the PDF document, and coded black rectangles to overlay them as a separate layer of the PDF file. But they left the complete text and images unredacted, so that they could be selected, cut, and pasted into a text editor from any PDF reading software. The Identity Project has posted a copy with the black blocks removed, but the red highlights and everything else retained, so you can see what portions the TSA might have been trying (ineptly) to hide. (Despite false TSA claims that it “was immediately taken down from the Web site”, as of yesterday the original version was still available on the same government site, although at a slightly more obscure URL.)

If, like me, you were hoping to learn the non-rules for TSA checkpoints and “screening” (search and interrogation), the Screening Management SOP is disappointing. It’s mostly about bureaucratic procedures for checkpoint supervisors. There’s been a lot of excessive commotion about whether its posting was a security breach or provides a “road map for terrorists” (it doesn’t), but little attention is being paid to some more significant things it reveals.

Here’s what I and the Identity Project think is really significant about this document, and its release, and what we’re doing next:

  1. Little, if anything, in the Secreening Management SOP is really so sensitive as to justify withholding it from the public, particularly when disclosure is specifically requested under FOIA (as it has been by the Identity Project). Because the unredacted version posted by the TSA includes the portion provided (in more effectively redacted form) in response to our previous FOIA request, it’s possible to see exactly what was withhold. Here are those pages, dealing with ID checking, as posted on fbo.gov and as provided in response to our previous FOIA request. Among the more obvious redactions, for example the TSA blacked out the phrase “appears to be tampered with” from the sentence, “If the ID lacks the required Federal, State, or local government, airport, or aircraft operator ultraviolet or micro printing security features, contains inkjet dots, or appears to be tampered with, the ID is suspect.” Would any terrorist likely to be successful in bypassing TSA security really be surprised, or benefit in planning their attack, to learn that TSA agents are instructed to be suspicious of documents that appear to be tampered with? We think not. Most of the other attempted redactions similarly fall short of the criteria for exemption from disclosure in response to FOIA requests, and call into serious question whether the TSA is complying with FOIA. We look forward to receiving a similarly complete and unredacted copy of the latest version of the Screening Management SOP and its updates in response to our current request. The TSA is still sending FOIA requests into a black hole, denied our request for expedited processing and denied our appeal of that denial, and has failed to respond by the deadline for even a non-expedited request. We’ve now appealed that “constructive denial” of our request. (Ironically in light of the fact that they had already posted it themselves on the Web, one of the reasons the TSA gave for denying our request for expedited processing was that even in whatever redacted form they might release it, “The Screening SOP … cannot be posted on your website for public viewing as you intend.”) The TSA is required to act on this appeal, and to produce the documents we originally requested, within 20 business days, or we will have exhausted our administrative remedies and be entitled to file suit for violation of FOIA and to force them to release the documents.
  2. The procedures are blatantly discriminatory and in apparent violation of Federal law, the U.S. Constitution, and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by and binding on the USA. One of the portions the TSA tried to hide is as follows: “If the individual’s photo ID is a passport issued by the Government of Cuba, Iran, North Korea, Libya, Syria, Sudan, Afghanistan, Lebanon, Somalia, Iraq, Yemen, or Algeria, refer the individual for selectee screening unless the individual has been exempted from selectee screening by the FSD [Federal Security Director, i.e. most senior TSA supervisor for the airport] or aircraft operator.” Some discrimination at borders and against foreigners based on national origin may be legal, if reprehensible, under U.S. law (although it may not satisfy the standards for compliance with the ICCPR), but as applied to dual U.S. citizens or to permanent U.S. residents (green-card holders) from these countries traveling within the USA, this practice clearly constitutes illegal discrimination on the basis of national origin, which the TSA specifically claims not to engage in. Of course, disclosing this will do nothing to “aid terrorists”, since citizens of these countries already know that they are routinely and systematically “selected” for more intrusive interrogation and search on the basis of their national origin. We look forward to seeing both private litigation and internal government enforcement action by the DHS Office of the Inspector General and TSA Office of Civil Rights and Liberties against the TSA and the officials responsible for these clearly illegal and blatantly discriminatory procedures.
  3. The Screening Management SOP for TSA supervisors reveals the existence of separate “Checkpoint Screening” and “Checked Baggage Screening” SOPs for front-line screeners, TSA screening FAQs, and several other related documents we didn’t know about before. We’ve immediately filed a new FOIA request for these additional documents, and will of course post whatever we receive in response on the Identity Project website at PapersPlease.org.
  4. The TSA is claiming that “The version of the document that was posted was neither implemented nor issued to the workforce. In fact, there have been six newer versions of the document since this version was drafted.” But a side by side comparison of the comparable portion of this version with the excerpt provided to the Identity Project in response to our previous FOIA request shows that while the pagination differs slightly, the version number, date, and text are identical. And the version on fbo.gov was part of a legally-mandated process for ensuring a fair and open competition among potential bidders for TSA contracts. We didn’t ask for any specific version, and the TSA disclosed this one to us in January 2009, and posted it on fbo.gov in March 2009. Why did the TSA post this version, or provide it to us, if if had never been implemented and had already been revised? Were they trying to mislead potential bidders, mislead us, mislead the public, or all of the above? And were the TSA FOIA staff who sent us this version aware of the attempt at deception in which they were playing a part? Or was this version actually implemented, at least at one time, and the TSA is lying in its latest press releases about what happened? We hope to find out more as soon as the TSA provides us with the current version, including all updates, in response to our latest pending FOIA appeal of their failure to act on our request.

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