You don't want to get one of these!
This is a developing story so details are a bit rough at this point. While Christopher Elliot (National Geographic Traveler’s reader advocate, travel troubleshooter, and MSNBC columnist) blogged and tweeted as he was putting his kids in the bathtub, he heard a knock at the door. It was Special Agent Robert Falherty serving him a subpoena from the Department of Homeland Security (DHS).
The subpoena gave Agent Falherty the permission to search any faxes and emails related to TSA Security Directive SD-1544-09-06. Directive 1544-09-06 spelled out all the fun new rules the TSA put into place that were widely panned (even by me).
Fancy I should choose to link to Steven Frischling’s Flying with Fish blog, since he too is reporting via Twitter that the DHS served him a warrant and searched his computer (update: he has now blogged about his DHS experience). Frischling made fun of the fact that he could see many people from the TSA and DHS reading his blog. But now it isn’t much of a joke, it is just crazy!
It seems the DHS is trying to find who leaked the TSA Directive and they are obviously willing to go to ridiculous lengths to do so.
I realize I don’t have all the facts yet, but even in the best case scenario, this is not going to look good for the DHS. It makes them look aggressive by trying to cover it up, seemingly embarrassed by their own directive. I am no legal expert, but I am pretty certain the press have protections from such violations.
Elliott and Frischling are highly respected travel and aviation journalists. When the TSA and government were silent about what was going on, you could count on them to get some answers before anyone else.
Even if DHS is in the legal right, it doesn’t make it right what they are doing. As a Twitter follower of mine said, “If [DHS] were as good on security as they are on chasing bloggers…”
I will be updating this blog as more information becomes available.
* Great write up and interview with Frischling from Runway Girl
* In the gig economy, who protects journalist bloggers? from Chris Around the World
* Government harassing blogger for source of TSA directive “leak” from Gadling
* Follow all the latest developments via Twitter #tsaFAIL
* Article written up by Tnooz
* Write up by the Seattle PI
* A counter argument made by Christopher Fotos at Things with Wings on why the TSA did the right thing.
UPDATE 12/30 8am: Elliott and Frischling are reporting via Twitter that the DHS came this morning and took Frischling’s computer and plan to be back around 3pm. This is getting crazier by the hour.
UPDATE 1:45pm: Mary Kirby via her blog Runway Girl talked to TSA agents. The TSA confirms they are looking into the leak. They did not have an answer to an airline reportedly was reading the Directive 1544-09-06 before takeoff and was unable to answer what direction the airlines were given. Frischling just reported on Twitter that the DHS just delivered his laptop back to him after searching it all day. Wired now has the story and is reporting:
Frischling, a freelance travel writer and photographer in Connecticut who writes a blog for the KLM Royal Dutch Airlines, said the two agents who visited him arrived around 7:00 p.m. Tuesday, were armed and threatened him with a criminal search warrant if he didn’t provide the name of his source. They also threatened to get him fired from his KLM job and indicated they could get him designated a security risk, which would make it difficult for him to travel and do his job.
Update 4:15pm: Wired now has a photograph of Frischling and agent Falherty. Now that is good! Looks like that is his laptop on the car hood. Frischling was interviewed on an internet radio station at 4pm CST, I am working on getting a link to that soon.
UPDATE 5:10pm: From Frishling’s Twitter account: “Well..MacBook left with TSA functioning, except a mouse issue, now I have all sorts of harddrive & operating system issues. Oy, not good“
UPDATE 9:00pm: About 24hrs ago I was one of two people that blogged about this story. Now USAToday, FoxNews, NYT and many more have covered it. It is even on the front page of MSNBC. I am amazed at the grassroots efforts of a few aviation bloggers on Twitter helped to make this happen!
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Image: timsamoff/Flickr/Christopher Elliott
You make it sound like they are trying to cover up something super secret and a big mistake. Your blogs have been anti-government and anti homeland security. They are just doing their best to protect passengers of airliners and every American on the ground. They don’t employ people with crystal balls (that we know of) that can tell them what event’s are going to unfold.
These bloggers are doing their jobs of reporting information that they get from sources. While the bloggers themselves did nothing wrong the people who are giving them classified info that they should not be giving this information out. While this particular bit of information likely would not cause a breach in security who knows what other information these sources would leak. Where better to find the source of the leak than the person that received the info.
Wait? You mean TSA has the legal power to send agents to my *house* and demand that I turn over my property to them, without a search warrant, with only the signature of some TSA mucky-muck (not a judge) to back up their demands?
I am not a lawyer, but this sounds like a legal bluff. A bluff that was successful in this case, as it caused the bloggers to voluntarily relinquish their laptops.
But in the larger scheme of things, use of this kind of tactic undermines the credibility of law enforcement. It used to be that if a law enforcement officer presented himself at my door with official paperwork and asserted he had the right to seize my property, I’d believe him. This incident seems to indicate that that my faith was misplaced, and that at least TSA’s law enforcement “Special Agents” are not above using ruses and bluffs to seize property.
Ben,
You said: “blogs have been anti-government and anti homeland security. They are just doing their best to protect passengers of airliners and every American on the ground.”
No, our government is most certainly NOT doing its best to protect us. If they were that guy would never have gotten on an airplane to the US. This is another case of our dysfunctional intelligence agencies dropping the ball. Each of them is more about protecting their turf, making themselves look good and getting the biggest budget from congress. I’m not sure it has much at all to do with TSA or DHS. I think they got screwed because the CIA, FBI and State dropped the ball.
It appears there was ample warning this guy was a threat. But because there is no real mandate for these government organizations to work together, share information and actually do the intelligence analysis and correlation of data that would have stopped this guy it didn’t happen.
This guy had the explosives in his underwear. I’m surprised some bright bulb in our government hasn’t suggested we all get strip-searched before flying. Wait for it. The full-body scanners are pretty darn close to a strip-search.
While we all take off our shoes, submit to invasive pat-downs, wear Depends on flights since we can’t pee the last hour. While we have our unopened bottles of water confiscated the REAL terrorists are thinking of new tactics to attack us. They’re thinking in terms of simple methods to attack. There is no Predator drone at airport security.
Instead of thinking about how to thwart yesterday’s threat by imposing indignities on the innocent; who in our government is trying to think like the terrorists so they can prevent the next attack?
Since I can’t have my water bottle maybe I won’t need those Depends after all.
Note: “Depend” is a registered trademark of Kimberly-Clark
By what authority can someone be deemed a security risk for not acquiescing their rights in their own home? I want the TSA agents held accountable for abusing their ability to designate someone a security risk in that way. They have been empowered to keep danger off of planes, not to get a private citizen to treat them as if they have more power than a judge just because they can hurt his livelihood. I’m afraid they’ll just deny making the threat and won’t be held accountable (hint: that’s what video cameras are for).
This is the result of that ugly law they use to strip us of all our rights called “The Patriot Act”. It gives them unlimited power to do as they please without warrants or court orders and are immune from prosecution. Thank you Mr Bush (NOT). Watch, they’ll come after me now for writing this. Thank God I now live in The Philippines.
I don’t know where to start. Mr. Brown’s story says “The subpoena gave Agent Falherty the permission to search any faxes and emails related to…”. Last time I checked, a subpoena only requires the requested materials be presented to the requesting party in a given time frame, generally no less than 24 hours, and usually a lot longer. The requesting party, under most circumstances, must be an officer of the court (i.e., an attorney).
If an agent or agents wishes to search or seize without permission they need a warrant, probable cause, or exigent circumstances. If they thought they had either of the latter two, they wouldn’t ask or have presented a subpoena. The fact that they served a subpoena tells me they didn’t have enough to put in a warrant application. Hence, no judge would issue them a warrant.
Further, unlike a warrant, a subpoena is not an *instant* instrument. As already stated, one usually has at least 24 hours to comply or make a motion to quash. Since the exact language of the subpoena is not given here, I can only guess. But if the subpoena actually uses language like “permission to search”, it’s defective on its face, and would likely be quashed on that technicality alone.
From my perspective, the first mistake Mr. Elliot made was having let the agent or agents into his house. He should have accepted the subpoena, refused to talk to them, and told them his attorney would be in contact. If they demanded the materials then and there, he should have told them to wait outside while he contacts his attorney. I strongly doubt they would have pushed their way in. (If they did, that would constitute, at minimum, civil trespass and possibly criminal trespass).
As best I can tell with the available information, this was a complete bluff. These guys are obviously good poker players. Too bad the average shnook is completely clueless. Chalk up another home run for big brother.
To respond to Ben. This was not classified material that these bloggers wrote about. Form an opinion based on fact – not ASSumption. You seem to think that anti-government speech is wrong. No doubt who you voted for!
If you read the directives and how ridiculous and assine they were, they deserved to be ridiculed and impeached publicaly. We are the laughing stock of the world. We have a bunch of clowns running our governmental agencies. Those directives looked like some kindergarten teacher wrote them to provide order to a bunch of obstreperous 4 year olds.
When your Constitutional rights are being trampled and stripped by your government, you and every other citzien of this country has the obligation to speak out and stand up. Perhaps you have never read the Constitution or the Bill of Rights.
While you are at it – read what our founding fathers had to say about our duty as citizens when confronted with an oppressive government.
Sounds like intimidation to me. Without a free and open press, which I consider bloggers and online news to be, we cannot have a free society. The government has no right to interfere. They can get a warrant if they think there is something being done illegally. No government agency has a right to do anything without a warrant, at least a questionably legal FISA warrant.
My cousin would love this blog post. We were recently speaking about this. hehe
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