Law in Plain English: Department of Homeland Security v. MacLean

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Department of Homeland Security v. MacLean

Argument: Nov 4 2014 (Aud.)

Background: In July 2003, all federal air marshals received a TSA briefing that there was a potential plot to hijack U.S. airliners. Soon after the briefing, however, the TSA sent an unencrypted text message to the marshals' cell phones canceling all missions on flights from Las Vegas until early August. Concerned about the danger the threat posed to the flying public in the absence of marshals on these flights, marshal Robert MacLean contacted his supervisor and the Office of the Inspector General. Dissatisfied, he revealed the cancellation order to an MSNBC reporter. Following an investigation, MacLean was removed from his job as a federal air marshal for revealing sensitive security information (SSI), although the agency had not labeled the text message as SSI when it was originally sent. MacLean challenged his removal before the Merit Systems Protection Board, arguing that his disclosure was protected whistleblowing activity. The Board determined that MacLean's disclosure fell outside of the Whistleblower Protection Act (WPA) because the disclosure was specifically prohibited by statute, via the Aviation and Transportation Security Act. The Court of Appeals for the Federal Circuit vacated the Board's decision because it held that the ATSAdid not specifically prohibit the disclosure made by MacLean. Although the ATSA empowers the agency to prescribe regulations prohibiting the disclosure of SSI, regulations by themselves are not considered laws for the purpose of the WPA. As a result, the case was remanded to the Board for a determination about whether MacLean's disclosures qualify for WPA protection.

Edited to add (Oct 9 2014): Mr. MacLean contacted me to say that he challenges the DHS assertion that the text message was limited to Las Vegas flights, and claims that the cancellation applied to all overnight flights. Specifically, MacLean believes that DHS deliberated narrowed the facts from a general whistlelower claim to just the Las Vegas flights because that would be a "specific detail[] of aviation security measure[];" thereby bolstering the claim against him. I'm not sure that matters at this stage; the Federal Circuit's opinion only referenced the Las Vegas flights, and facts generally cannot be challenged at this level. But because MacLean contacted me, I included that information here. Stay tuned to see whether his lawyers raise the issue during oral arguments.

Issue: The question before the Court is whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Holding: In a 7-2 decision, the Supreme Court ruled that MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute.

The world is a safer place after my freedom frisk

The world is a safer place after my freedom frisk. Also, see the passport and boarding pass in my hand? It happened again.

TSA, are you missing something? (oops!)

UPDATE (12/23/2013): It happened again.

Now that I am safely home from DerbyCon (btw, well worth putting on your calendar for next year) and not planning to travel by air anytime in the immediate future, I thought it was timely to make this post about a perceived flaw in the TSA's screening procedures.

Over about a half dozen times during the last year or so (across multiple airports, including BWI, LAS, SDF and others), my TSA checkpoint procedure has been the same: opt-out and pat down. I also noticed something else that happened (or, perhaps more accurately, didn't happen) over the course of those trips. Of course, this finding is tempered by the fact that we're working with a small sample here.

When I am pointed to the naked scanner, I always politely say, "opt-out."* Nothing more--no loud objections or comments. I am always told to stand there while they retrieve an agent for the freedom frisk, err, pat down. Passport and boarding pass in hand, I am then escorted through a gate between the metal detector and the naked scanner to a floor mat where I obediently place my feet on the outlined footprints. There, I am patted down** and go on my way.

In one of those pat downs, no one has ever checked, or even questioned, the items in my hand. Notice above that I was sent through a gate, so the items in my hand were never seen by any machine, metal detector or naked scanner. It seems entirely plausible to me that I could have any number of small items in my hand, concealed by my passport, that would never have been screened. A few people that I have already talked to confirmed that they had the same experience.

Now, I don't suggest that I have uncovered some dangerous flaw that could doom the airlines! I simply point out something that seems entirely obvious to me, as a suggestion that the whole procedure reeks of theater and not actual security (as if you didn't already know that). Additionally, if it is TSA procedure to have passengers empty their hands, they're simply not following this policy regularly.

Have you had similar experiences?

*On one occasion, the TSA agent pulled out a card and read it to me, which more or less said "you're going to get patted down, are you really sure you want to opt-out or opt-in." Why yes, I still do want to opt-out!

**On more than one occasion, the TSA agent patting me down has tried to engage me in conversation. Typical question: "Where are you headed?" Me: "Home." :-) Also: "You've done this [opt-out] before, haven't you?" Me: "Yep." Lastly, I appreciate the agents who acknowledge my stuff on the x-ray belt.

The TSA Not Top Ten Catches of 2011

In response to the TSA Top 10 Good Catches of 2011, I present to you, the Not Top Ten Catches (or Misses) of 2011 (in no particular order):

1. A cupcake (velvet icing!)
2. A purse with an embroidered gun on it
3. Box cutters (oops, they missed them)
4. A loaded handgun (oops, they missed it!)
5. Another loaded handgun (yeah, they missed that one, too)
6. A 14-inch sword (oops, they missed that, too)
7. C4 (oops, they missed it)! Seriously. This guy was eventually caught, but not after he had already flown with it at least once
8. "An oddly placed iPod and a bag of candy" (highly dangerous)
9. Your bag (as in, actually searching it)
10. Catching a "fake" bomb during a terror drill, and failing to tell the police!

Now, don't you feel safer?

On the constitutionality of airport searches

If you're wondering what the courts have said about the constitutionality of airport searches, you'd probably end up where I did; still looking.  It turns out the the Supreme Court has never ruled on the constitutionality of such searches, although there have been some related rulings.

It turns out that the most relevant case is one from the U.S. Court of Appeals for the Ninth Circuit (United States of America v. Daniel Kuualoha Aukai) which ruled that:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”

And because "the Supreme Court has repeatedly upheld the constitutionality of so-called “administrative searches,.” it is reasonable to assume that the Supreme Court would find these searches constitutional, generally.

The caveat to this decision:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless.  A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [][and] that it is confined in good faith to that purpose.”

So the key to the current set of procedures, in regards to the full-body scanners and enhanced pat-downs, is whether or not these tools are "more extensive" or "more intensive than necessary under the circumstances."

It seems to me that you could argue that in some specific cases, the procedures used by the TSA may have crossed this line (and in fact, they've more-or-less admitted this is the case in some cases); but there might be some difficulty arguing that these procedures in general cross the line (especially with the current Court).

Here is the text of the decision in its entirety:

United States of America v. Daniel Kuualoha Aukai

"Not all parts of the government are accountable to the public, especially the TSA"

Robert Graham of Errata Security was detained by the TSA for 30 minutes for taking pictures at the security checkpoint.  He details his experience here.  The quote in the title refers to part of a conversation he had with a TSA agent:

TSA: Don’t you have normal operating procedures at your work?

Robert: Yes

TSA: How would you like it if somebody came to your work and disrupted your procedures? How would you like it if people took pictures of you at your work?

Robert: I don’t work for the government. Government agencies need to be accountable to the public, and therefore suffer disruptions like this.

TSA: Not all parts of the government are accountable to the public, especially the TSA.

Robert: Wow. No, ALL parts of the government are accountable to the people, especially the TSA. I’m not sure what type of country you think we live in.

According to the most recently-available policies, taking pictures at a TSA security checkpoint is expressly permitted, provided that it does not interfere with the operations of the agents.

You really should read the rest of his blog post here as it is totally worth your few minutes of time.

Young Boy Strip Searched By TSA

Someone please explain to me how this makes us safer?

TSA Enhanced Screening Procedures Explained

Enough is Enough! Congressman Ron Paul on TSA Abuses

Hyperventilating news coverage over "child air traffic controller" is an overreaction

There is considerable reporting about the news today (here and here) that a child was "controlling" aircraft at JFK last month. Essentially, during one of the snow days in February, one of the air traffic controllers at JFK brought his son (?) to work, and allowed him to speak on one of the air traffic control frequencies a few times:

Child: "171 cleared for take off."

Pilot: "Clear for take off JetBlue 171"

Child: "Let's see your Air Mexico 403 Kennedy, runway through left position and hold."

Pilot: "Going to hold Air Mexico 403."

Unknown: "This is what you get guys when the kids are out of school."

Unknown: "Wish I could bring my kid to work."

Child: "JetBlue 171 contact departure."

Unknown: "Over to departure JetBlue 171, awesome job."

Child: "03 clear for take off."

Anyone with a basic knowledge of air traffic communications will recognize that the child is speaking on JFK's tower frequency. From listening to the audio, it is abundantly clear to me that this child was not "controlling" aircraft, he was obviously just saying over the radio what his dad is telling him to say; in fact his dad (or another controller) jumps in a few times to direct other aircraft. Likewise, the pilots are clearly aware of this and play along with comments like "awesome job".

Now I am sure that technically speaking there is a violation of some FAA procedure here, and I suspect that this controller will be suspended. And unfortunately for this controller (and especially as a result of the hyperventilating news coverage), that's probably the right course of action.

Another focus in the news coverage is how in the world this boy made it into the tower. Well, that's pretty obvious, isn't it? His dad took him in. It's not as if he snuck past the TSA/FAA/TLA or whomever is supposed to guarding the tower from children trained as rogue ATC operators looking to seize control of the skies.

Having spent my time in the Navy as a Naval Flight Officer, I recognize the critical importance of communication between aircrews and controllers, so I don't take this issue lightly. But to see this on Drudge and every major network, as if it is breaking news, seems to be to be a major overreaction.

TSA closes the barn door after the horse has gone (again)

Not since December 2001 when Richard Reid tried to light an explosive in his shoe has the TSA so blatantly closed the barn door long after the horse has gone. Because of Reid we are now, even eight years later, more likely than not required to take off our shoes when going through security, even though there is no evidence to suggest that any idiot would follow this same course of action.

The new TSA policy is stated below:

TSA issued a directive for additional security measures to be implemented for last point of departure international flights to the United States. Passengers flying into the United States from abroad can expect to see additional security measures at international airports such as increased gate screening including pat-downs and bag searches. During flight, passengers will be asked to follow flight crew instructions, such as stowing personal items, turning off electronic equipment and remaining seated during certain portions of the flight.

Based on the observations of people that have flown in the last few days, this has generally been perceived to mean that (at least for international flights inbound to the United States) during the last hour or so of the flight, passengers will be confined to their seats, with no access to the lavatories or their carry-on bags. Further, passengers will probably be prohibited from having anything on their laps or person--no pillows, blankets, laptops, etc. Apparently this because this is exactly what the suspect, Umar Farouk Abdulmutallab, allegedly did. Because as you know, the next terrorist will do the exact same thing.

Surely, there is someone among the higher-ups in the TSA who is shaking his or her head at the absurdity of these new policies. Also, these measures will only serve to allow the public to further alienate themselves from flying in general; the nameless figureheads at TSA will be subject to criticism from afar (as I have done here), but the flight attendants will unfortunately bear the brunt of it up close and personal.

By the way, the explosive used by both Richard Reid and Umar Abdulmutallab was PETN, which would not be detected by a magnetometer. Not in 2001, not in 2009. So keep taking off those shoes for the nice folks in the security line.

More airport security humor

Courtesy of Schneier on Security:

Can you identify the bombs?

In related news, here's a guy who makes it through security with a live vibrator in his pants.

There's also a funny video on Dutch TV. A screener scans a passenger's bag, putting aside several obvious bags of cocaine to warn him about a very tiny nail file.

Here's where to buy stuff seized at Boston's Logan Airport. I also read somewhere that some stuff ends up on eBay.

And finally,Quinn Norton said: "I think someone should try to blow up a plane with a piece of ID, just to watch the TSA's mind implode."

What the terrorists want

Reposted from here (Schneier on Security, an excellent blog, linked on the right).

On Aug. 16, two men were escorted off a plane headed for Manchester, England, because some passengers thought they looked either Asian or Middle Eastern, might have been talking Arabic, wore leather jackets, and looked at their watches -- and the passengers refused to fly with them on board. The men were questioned for several hours and then released.

On Aug. 15, an entire airport terminal was evacuated because someone's cosmetics triggered a false positive for explosives. The same day, a Muslim man was removed from an airplane in Denver for reciting prayers. The Transportation Security Administration decided that the flight crew overreacted, but he still had to spend the night in Denver before flying home the next day. The next day, a Port of Seattle terminal was evacuated because a couple of dogs gave a false alarm for explosives.

On Aug. 19, a plane made an emergency landing in Tampa, Florida, after the crew became suspicious because two of the lavatory doors were locked. The plane was searched, but nothing was found. Meanwhile, a man who tampered with a bathroom smoke detector on a flight to San Antonio was cleared of terrorism, but only after having his house searched.

On Aug. 16, a woman suffered a panic attack and became violent on a flight from London to Washington, so the plane was escorted to the Boston airport by fighter jets. "The woman was carrying hand cream and matches but was not a terrorist threat," said the TSA spokesman after the incident.

And on Aug. 18, a plane flying from London to Egypt made an emergency landing in Italy when someone found a bomb threat scrawled on an air sickness bag. Nothing was found on the plane, and no one knows how long the note was on board.

I'd like everyone to take a deep breath and listen for a minute.

The point of terrorism is to cause terror, sometimes to further a political goal and sometimes out of sheer hatred. The people terrorists kill are not the targets; they are collateral damage. And blowing up planes, trains, markets or buses is not the goal; those are just tactics. The real targets of terrorism are the rest of us: the billions of us who are not killed but are terrorized because of the killing. The real point of terrorism is not the act itself, but our reaction to the act.

And we're doing exactly what the terrorists want.

We're all a little jumpy after the recent arrest of 23 terror suspects in Great Britain. The men were reportedly plotting a liquid-explosive attack on airplanes, and both the press and politicians have been trumpeting the story ever since.

In truth, it's doubtful that their plan would have succeeded; chemists have been debunking the idea since it became public. Certainly the suspects were a long way off from trying: None had bought airline tickets, and some didn't even have passports.

Regardless of the threat, from the would-be bombers' perspective, the explosives and planes were merely tactics. Their goal was to cause terror, and in that they've succeeded.

Imagine for a moment what would have happened if they had blown up 10 planes. There would be canceled flights, chaos at airports, bans on carry-on luggage, world leaders talking tough new security measures, political posturing and all sorts of false alarms as jittery people panicked. To a lesser degree, that's basically what's happening right now.

Our politicians help the terrorists every time they use fear as a campaign tactic. The press helps every time it writes scare stories about the plot and the threat. And if we're terrified, and we share that fear, we help. All of these actions intensify and repeat the terrorists' actions, and increase the effects of their terror.

(I am not saying that the politicians and press are terrorists, or that they share any of the blame for terrorist attacks. I'm not that stupid. But the subject of terrorism is more complex than it appears, and understanding its various causes and effects are vital for understanding how to best deal with it.)

The implausible plots and false alarms actually hurt us in two ways. Not only do they increase the level of fear, but they also waste time and resources that could be better spent fighting the real threats and increasing actual security. I'll bet the terrorists are laughing at us.

Another thought experiment: Imagine for a moment that the British government arrested the 23 suspects without fanfare. Imagine that the TSA and its European counterparts didn't engage in pointless airline-security measures like banning liquids. And imagine that the press didn't write about it endlessly, and that the politicians didn't use the event to remind us all how scared we should be. If we'd reacted that way, then the terrorists would have truly failed.

It's time we calm down and fight terror with antiterror. This does not mean that we simply roll over and accept terrorism. There are things our government can and should do to fight terrorism, most of them involving intelligence and investigation -- and not focusing on specific plots.

But our job is to remain steadfast in the face of terror, to refuse to be terrorized. Our job is to not panic every time two Muslims stand together checking their watches. There are approximately 1 billion Muslims in the world, a large percentage of them not Arab, and about 320 million Arabs in the Middle East, the overwhelming majority of them not terrorists. Our job is to think critically and rationally, and to ignore the cacophony of other interests trying to use terrorism to advance political careers or increase a television show's viewership.

The surest defense against terrorism is to refuse to be terrorized. Our job is to recognize that terrorism is just one of the risks we face, and not a particularly common one at that. And our job is to fight those politicians who use fear as an excuse to take away our liberties and promote security theater that wastes money and doesn't make us any safer.

This essay originally appeared on Wired.com.

EDITED TO ADD (3/24): Here's another incident:

All 12 passengers arrested after a US airliner returned to Amsterdam will be released, Dutch prosecutors say.

Northwest Airlines flight 42, bound for Mumbai (Bombay) in India, changed course over Germany and flew back to Schiphol airport on Wednesday.

The 12 men, said to be of Asian appearance, reportedly aroused suspicion by fiddling with mobile phones and plastic bags.

US air marshals apprehended them before the pilot diverted the flight.

Two Dutch F-16 fighter jets escorted it back to Schiphol.

Sigh.