Just days ago, in the aftermath of the Delta terrorist attempt, Christopher Elliott and Steven Frischling posted the full text of the TSA’s security directive. Now both men have been visited by federal agents and served with subpoenas, demanding the name(s) of the person(s) who provided them with the text of the policy.
Is this really necessary? Several components of the changes were posted on airline websites, including Air Canada. News outlets covered the details over and over again. And travelers figured out the content of the directives really quickly, as security procedures changed around the globe.
TSA directives are categorized as “sensitive security information,” regardless of specific content, according to the Electronic Code of Federal Regulations title 49, section B, chapter xii, subchapter B, part 1520 (“current as of December 28, 2009,” which seems like it was updated after this incident…) And “covered persons” (such as airlines, airport managers, etc.) who have access to this information have a legal duty to protect the contents of sensitive security information. Notably, journalists and bloggers are not covered persons, so presumably cannot be guilty of any crime here by disclosing information — TSA employees, airlines, and airports might be. Thus, the subpoenas to find those who CAN be punished.
There are several questions at hand: First, should these security directives necessarily be considered secret? After all, they directly affect thousands of travelers daily, and govern the behavior of passengers in airports.
Second, is it necessary to use intimidation tactics and to violate the tradition of journalistic privilege, in order to conduct an internal investigation? I understand that TSA is concerned that they’re not following protocol, given the debacle of the improperly-redacted documents. But is this the way to do it?
And what the heck is going on with this tweet:
Frischling’s subsequent tweets state that he spent “two hours or so” with federal agents. In that case, the pictured tweet, sent minutes earlier, suggests a) the source of the leak was anonymous, and b) the feds are pressuring him to help them on a fishing expedition.
The biggest danger here is that bloggers and journalists will shy away from publishing information that they are legally entitled to do, for fear that the federal government will harass them. This can have a chilling effect on the dissemination of information in a democracy.
The logical inconsistency of the TSA policy was bad enough. Publicly going after bloggers who posted the policy — and criticized it — only makes the agency look worse.
Update late 12/31/09: The TSA has withdrawn the subpoenas, saying they were “no longer necessary.” Have they found the leak, or did they just recoil because of bad PR ? Stay tuned…