
Court: Federal Law Allows Lying in TSA-Related FOIA Requests - tsaoutourpants
http://tsaoutofourpants.wordpress.com/2013/09/03/court-federal-law-allows-lying-in-tsa-related-foia-requests/
======
rayiner
I suggest you read the actual opinion:
[http://tsaoutofourpants.files.wordpress.com/2013/09/corbett-...](http://tsaoutofourpants.files.wordpress.com/2013/09/corbett-
v-tsa-full-dismissal.pdf).

Basically, the opinion decided three things:

1) The TSA acted reasonably to pixilate the names and faces of low-level TSA
employees in the released videos;

2) The TSA's search for relevant documents was reasonable and the plaintiff
did not provide any information that refuted the reasonableness of the search;
and

3) The District Court was not empowered to review the substance of the
redactions because Congress gave that power to the Courts of Appeal.

I didn't see anything about the court sanctioning "lying."

Basically this dude sounds like a crank who filed a pro se complaint with a
laundry list of alleged Constitutional and statutory violations that didn't
actually hold water and is now mad that the District Court told him to pound
sand.

~~~
konklone
The opinion actually does seem to suggest that it was okay to lie about the
existence of the records - it's near the end, here's the relevant section:

> Finally, Plaintiff maintains that Broward violated the FPRA by falsely
> denying the existence of surveillance footage from the security checkpoint.

> Like FOIA, the FPRA provides that Florida citizens have a broad right to
> inspect the records of public bodies absent a clear and specific exemption
> from disclosure.

> TSA regulations, meanwhile, provide that airport operators must “(1)
> Restrict the distribution, disclosure, and availability of sensitive
> security information (SSI), as defined in part 1520 of this chapter, to
> persons with a need to know; and (2) Refer all requests for SSI by other
> persons to TSA.” 49 CFR § 1542.101(c); see also id. §1520.9(a)(3) (providing
> that airport operators must “[r]efer requests by other persons for SSI to
> TSA”).

> Here, Broward acted pursuant to federal regulations and the OTA when it
> consulted the TSA regarding Plaintiff’s records request, and it acted at the
> direction of the TSA in denying the existence of surveillance footage. The
> Court therefore has difficulty in concluding that Broward’s actions could be
> unlawful under the FPRA.

~~~
konklone
Granted, this mingles both the federal FOIA and the state FPRA, but I believe
the opinion is saying that neither was violated by the denial of the existence
of the information.

------
msandford
The asymmetry of the fight between an individual vs the TSA is mind-boggling.
Especially today when accusations of guilt are enough to try someone in the
court of public opinion and "convict" them. The lack of public outcry that
ensues after bashing in the media makes it very difficult to get anything done
as the TSA, other government officials and judges are all to happy to trample
on rights so long as they're mostly out of the public eye.

I wish you the best with your efforts. It's encouraging to see someone making
the case for sanity in a system that's largely gone off the rails.

------
eli
I don't think this headline is fair. TSA should probably not have lied about
the existence of records, but since they weren't doing it in response to a
federal FOIA request, I'm not sure they technically did anything wrong. And
the Florida agency is supposed to defer to the TSA on this request so they
also didn't really do anything wrong. Bit of a catch 22, I guess.

Anyway, the judge threw out your case because you were seeking access to a
video that you already (eventually) were provided -- so there was no case.

IANAL.

~~~
tsaoutourpants
The judge dismissed the public records charge for two reasons: 1) because they
were allowed to lie, and 2) even if they weren't, they ended up getting the
video, so now it's moot. The points stand separately.

Incidentally, the mootness justification is incorrect as well. When a
government action is capable of repetition while permanently evading review
(as is clearly the case here: they're not allowed to lie, but if you catch
them, it's moot), an exception to the mootness doctrine is created.

~~~
mpyne
A "mootness" justification is perfectly applicable here though.

An issue is 'moot' if there is no relief possible. The relief that was sought
for lying, according to the ruling, was the release of the checkpoint video.
But it had already been released, therefore there's nothing further for the
judge to rule on.

Were you suing for other types of damages based on the Broward Co. letter? Did
the judge somehow misinterpret the damages you sought?

Either way the judge has _not_ ruled that the agency is "allowed to lie" in
general, and even in this specific case only mentioned the idea in passing but
then ultimately judged it moot (i.e. no precedent set one way or the other).

~~~
tsaoutourpants
Declaratory relief was demanded on all counts and the judge was repeatedly
reminded of it, but refused to address it.

~~~
mpyne
"Declaratory relief refers to a judgment of a court which determines the
rights of parties without ordering anything be done or awarding damages. By
seeking a declaratory judgment, the party making the request is seeking for an
official declaration of the status of a matter in controversy." [1]

So, what was the matter in controversy here? And why were you willing to
settle for no action being ordered or damages awarded even if you won?

Apparently both you and the TSA agree that Broward's initial letter was
deliberately inaccurate, so that can't have been the matter under controversy.

[1] [http://definitions.uslegal.com/d/declaratory-
relief/](http://definitions.uslegal.com/d/declaratory-relief/)

~~~
tsaoutourpants
The controversy is whether it was lawful for the letter to be deliberately
inaccurate. Broward maintains that is was, and with good motive: Florida law
makes it a criminal matter to lie in a public records response.

------
andrewfong
This post isn't entirely accurate. It's tempting to bash the courts for a
decision you don't like, but after reading the opinion, I don't think the
judge is obviously wrong (I say "obviously" because I haven't checked all of
the citations for accuracy).

Some key points from the opinion:

* There is precedent stating that _district_ courts do not have jurisdiction to review sensitive security issues and that this has to be considered by an appellate court. The main way to get to an appellate court is to dismiss the case at a district level. Therefore, I would consider this less the court saying "what the TSA did was proper" and more "I can't rule on that, but let's send you to the right court."

* The plaintiff accuses Broward County of lying at the TSA's direction about the existence of the surveillance footage. Two issues here: (1) If the TSA is telling Broward to lie, then it's obviously the TSA's fault, not Broward's. But it's not clear from the opinion whether the plaintiff properly directed this accusation at the TSA as opposed to Broward, and courts can't automatically amend your complaint to go after the right person when you accused the wrong one. (2) The only relief requested by the plaintiff was that the court release the video. Since the video was released, there's nothing else the court can do to punish Broward county for lying.

I realize a lot of this boils down to technicalities that don't really get to
the substance of the actual legal claim, but that's how our legal system works
(and for good reason -- the technicalities that slow down justice are the same
ones that slow down injustice).

One last point -- the author is angry at the court for needless delays and so
forth. I don't know the particulars here, but I will note that it's probably
less that he's being singled out and more because of budget cuts. Courts all
around the country have been taking ridiculously long times to resolve issues
ranging from child custody disputes to patent litigation.

------
sethbannon
This is no small matter. Without accountability, there will be no justice.

~~~
seiji
Nobody is accountable though. Who do we yell at? We can't blame the line
employees. They are just state machines with no free will [N]. Their managers
aren't empowered do anything either except harass you even more.

Are there TSA "executives?" Politicians won't dare entertain the idea of
defunding them.

There is literally no solution. There exists no recourse any person alive can
do to stand up against the TSA.

[N]: Stop limiting liquid carry ons. Stop throwing them away in bulk
containers that make no sense if you think they are potentially dangerous. I
will give you $10,000 if you make my sunscreen or toothpaste explode more
violently than the as-much-as-you-like-sir laptop batteries, phones, and iPads
everybody carries.

~~~
Amadou
_Politicians won 't dare entertain the idea of defunding them._

They might if they had to put up with the same crap the plebes do. But the TSA
has figured out how to keep all the powerful people from having to undergo the
same indignities that normal people do - they let them opt out of almost all
of it for a background check and about $100.

[http://www.tsa.gov/tsa-precheck](http://www.tsa.gov/tsa-precheck)

Which, I'd like to point out is ridiculous if you believe that the TSA is
about actual security. They've just created a whole class of passenger that
get to bypass almost all of the 'security.' Background checks don't prevent
people from being conned into carrying explosives in their baggage.

~~~
boondocker
Rand Paul wants to defund them and was detained by TSA for refusing a pat
down. He may very well be the Republican nominee for President in 2016.

~~~
bsullivan01
Anyone refusing a pat down will be detained.

The lowly TSA hourly employee was probably shaking at the thought of having to
do that to a US Senator and possible consequences but he had to do it.

~~~
tsaoutourpants
I'm sure he had no idea.

------
triplesec
To the Supreme Court! I hope you have talked to the EFF and similar bodies who
live for this kind of battle. I can introduce you if necessary, though I'm
sure it's not.

We need people like you doing this stuff, and more of us likewise. I'm working
on my own technology approach to it quietly right now. In fact I need an
electronics hacker to help me with the difficult bits if anyone is interested.

~~~
tsaoutourpants
I've been in touch with good people from the ACLU, EFF, EPIC, etc., but
they're busy fighting their own battles. Others may be more knowledgeable, but
no one can fight for my interests more passionately than I can.

Incidentally, in a separate case already in the Court of Appeals, I have the
_last_ court battle left regarding the constitutionality of the TSA's body
scanners. EPIC, a bunch of attorneys, and some Harvard Law recent grads are
all out of the game. My brief for that petition will be filed in about 4
weeks. Details: [http://tsaoutofourpants.wordpress.com/2012/11/16/new-
petitio...](http://tsaoutofourpants.wordpress.com/2012/11/16/new-petition-tsa-
removes-91-body-scanners/)

------
trysomething
One thing we're learning is that Snowden/Greenwald merely revealed symptoms of
a metastatic disease spreading through our government and society. The
American State no longer exists to protect its founding ideals but rather to
enlarge itself at any cost to its host, the American People.

The USA was unique in that it held itself up to a standard that could never
quite be reached. Our founders asked a very difficult question: given that
societies exist and are prone to factionalism, how do we minimize oppression
by the state against even the most obnoxious individuals (
[http://www.constitution.org/fed/federa10.htm](http://www.constitution.org/fed/federa10.htm)
).

Their answer to Tyranny wasn't Anarchy .. Anarchy is simply a nation of many
Tyrants. It was a state that controlled itself through separation of powers.
Not just (as kids are taught) between the Legislature, Executive and Judicial
branches, but also between the Federal and State governments, the State and
Local governments etc. It was division of power by definition.

Today, much like cancer cells I don't think the perpetrators are consciously
doing anything wrong, it's simply in their DNA. This is a peculiar problem:
past statist diseases like Fascism, Theocracy or Communism were easy to
diagnose: they said what they meant and meant what they said.

At this point, surgery or chemotherapy won't do. If the USA is to survive in
any recognizable form, we are going to need to invent the analog of _gene
therapy_. We are going to need to spread ideas and change the human DNA of our
populace. I think it's happening, but could be quickly reversed if those who
care for Liberty don't seriously involve themselves at some level.

------
fnordfnordfnord
_" She then took... and needlessly delayed rulings, rather than to dispense
with justice."_

She did dispense with justice. It would make more sense to me if you removed
"with".

And thanks for continuing to fight this crap.

~~~
Amadou
> And thanks for continuing to fight this crap.

Agreed. They only get away with it because most of us feel we can't afford to
put enough of the rest of our lives on hold in order to fight it. So people
like Corbett who are willing to make that sacrifice and fight the good fight
are really important.

~~~
tsaoutourpants
You guys are welcome. I do hope it inspires someone else to take up a cause
that they feel strongly about. I'm not a lawyer, but anyone who keeps up with
HN is smart enough to learn how to draft and file a document. Even if you
never win in court, you're moving the fight in the right direction.

------
grandalf
There is simply no reason why any state secrets should be secret for more than
5 years. It's utterly absurd that something like the Kennedy assassination
files are still kept secret. Much of what was in the Iraqi War Logs was simply
to help the pro-war propaganda campaign.

If Wikileaks has taught us anything, it's that we _cannot trust_ our leaders
to appropriately classify information.

~~~
mpyne
There are military systems that don't even get _fielded_ within 5 years of
design start. I think 5 years is therefore way too short, at least as a
generic number.

~~~
grandalf
The trust to carry out such long term secret projects has been lost. This is
why abuse of secrecy weakens the nation.

------
joelrunyon
I'm always interested in how someone like this would feel about the Global
Entry program(1).

On one hand, you're getting out of the pat-downs and frisking every time you
fly. On the other hand - you're arguably subjecting yourself to more permanent
invasion of privacy by enrolling in their program.

(1) [http://www.globalentry.gov/](http://www.globalentry.gov/)

~~~
tsaoutourpants
I'm not a GE/PreCheck/Clear/Nexus member. It's not even the background check
-- I simply will not pay a membership (extortion) fee to avoid being groped at
the airport. The right not to be abused does not have a tax on it.

~~~
joelrunyon
That's sort of what I thought.

I've only thought about doing it because the Amex Platinum card has a
statement credit for it.

I'm still hesitant about it just based on principle.

~~~
tsaoutourpants
I'd ditch the AmEx platinum card too. ;) Do you really get $450 worth of value
from your annual fee?

~~~
joelrunyon
With the lounges, credit + a few of the other perks - it pays for itself
nicely for the regular traveler.

------
frank_boyd
> I'm a 28 year old entrepreneur and frequent flyer who opposes visual and
> manual inspection of the private parts of our bodies! I hope you'll join me
> in my fight to have our rights restored!

Very noble goal, but my feeling is: Too late, not going to happen. Not by
using any of the conventional "solutions", anyway.

------
crb002
Vaughn v Rosen

[http://scholar.google.com/scholar_case?case=2117854604861806...](http://scholar.google.com/scholar_case?case=2117854604861806727)

The TSA has to provide you with an index of the materials and a legal reason
for denying production of each.

------
mpyne
This is the most hyperbolically exaggerated description of a court ruling I've
seen on HN for weeks, and that's _saying something_.

Everyone, _please_ read the actual ruling before you comment here one way or
the other.

~~~
tsaoutourpants
If by "hyperbolically exaggerated" you're conceding that it's still true, ok
then.

~~~
mpyne
Wow, this is meta. The idea that "hyperbolically exaggerated" is a euphemism
for "true" is itself a pretty hyperbolic exaggeration.

~~~
tsaoutourpants
I think you're exaggerating (hyperbolically, of course).

------
ihsw
To sum it up, they can now deny instead of "neither confirm nor deny."

