Full text of my subpoena from the Department of Homeland Security

December 29, 2009

We had just put the kids in the bathtub when Special Agent Robert Flaherty knocked on my front door with a subpoena. He was very polite, and used “sir” a lot, and he said he just wanted a name: Who sent me the security directive?

I invited Flaherty to sit down in the living room and introduced him to my cats, who seemed to take a liking to him. The kids came by to say hello, too.

“A subpoena?” I asked the special agent. “Is that really necessary?”

“Sir,” he repeated. “You’ve been served.”

Alright, then. I’ve been served. Here’s the full text of the subpoena:

UNITED STATES OF AMERICA
Department of Homeland Security
Transportation Security Administration

SUBPOENA DUCES TECUM

YOU ARE HEREBY COMMANDED BY THE ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, to produce and permit inspection and copying of the records described below to Special Agent Robert Flaherty, TSA Office of Inspection, Transportation Security Admininistration, 580 T G Lee Blvd, Suite 610, Orlando, Florida 32822 (Phone #: 407-563-4096), email: Robert.M.flaherty@dhs.gov, no later than COB December 31, 2009, in furtherance of an official investigation:

All documents, emails, and/or faxsimile transmissions (sic) in your control possession or control concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009.

IN TESTIMONY WHEREOF, the undersigned, an officer designated by the Transportation Security Administration, has hereunto set his hand in the county of Arlington, Virginia, this 29th day of December, 2009.

Dan Kuntz
Senior Counsel – Civil Enforcement
Transportation Security Administration
U.S. Department of Homeland Security

AUTHORITY

This subpoena is issued under the authority contained in 49 U.S.C. §§ 40113 and 46104; and 49 C.F.R § 1503.3.

Any person who neglects or refuses to produce records in obedience to this subpoena is subject to fines under Title 18, United States Code, imprisonment for not more than one year, or both, 49 U.S.C § 46313.

(For those of you who didn’t go to law school or take Latin, a subpoena duces tecum — Latin for “bring with you under penalty of punishment” — is form of a subpoena issued by a court ordering the parties named to appear and produce tangible evidence for use at a hearing or trial.)

So if I’m reading this correctly, the TSA wants me to tell them who gave me the security directive.

I told Flaherty I’d call my attorney and get back to him.

What would you do?

(Incidentally, my kids liked Special Agent Flaherty. They’ve been calling him “our friend from the TSA” all evening. Probably because he had a cool badge and got along with the cats.)

(Photo: timsamoff/Flickr Creative Commons; it is not a picture of my actual subpoena, which doesn’t look quite as sexy.)

Tagged as: DHS, SECURITY DIRECTIVE, SUBPOENA, TSA

Iain

I really can’t believe that they are trying to do this. There is little ole’ me thinking that if I had the chance I would move to the US asap and escape the UK, but am thinking now maybe I am better off where I am, for the moment! If you need it, I think you may be surprised how many will help out with a defence fund. You can certainly count me in
Pingback: Free Flight Video Magazine » Blog Archive » Homeland Security Subpoenas Two Journalists
Jay

Chris, everyone seems to be missing the silver lining here. FREE PUBLICITY! This can only bring you more readers in the future AND more money.

Good Luck
Jan

doesn’t help you know, but next time submit your docs to wikileaks. the purpose of that site is to keep you out of trouble that you are in now. after submitting to wikileaks you can link to their site :)

They might even be able to assist you now.
Me

The TSA just doesn’t know when to stop. This is an agency that can do nothing right except find new ways to waste money. Look at the list of types of airline employees who were supposed to receive the information. After dissemination, the list has to include many tens of thousands of people across the globe. Did they really think they could keep the details secret? The details of this were posted and broadcast all over the place.

I think very little of Chris’ work as a journalist, but I FULLY SUPPORT him on this.
Bill

Having work for lawyers, with lawyers and having themwork for me over the last 20 years but not being a lawyer myself this is a very simple matter from the legal side. TSA wants to find out who leak information, that by Goverment Regulations that were developed pursuant to Federal Law, that such information is of a nature that it should not be released to the public due to safety etc.

Chris being a reporter has certain legal and constitutional protections. If Chris choose to fight this, a court will have to balance his rights versus the need to keep such information from the public.

On the other hand Chris if you turn up the pressure via the press, you may get them to back off.
http://www.roamingtales.com Caitlin

Start the legal defence fund. You have helped so many readers, I’m sure that many people will be willing to give back. Even if you decide to comply without a fight, you should probably get legal advice and that’s expensive. But I’m guessing that it’s an anonymous source and as a journalist you’ll want to protect that if you possibly can.
http://www.stuartgustafson.com Stuart Gustafson

Don’t feel bad about posting where people can send donations for your legal defense. Count me in!
http://www.alaskatravelgram.com Scott McMurren

Wow. I’ve never been served in my capacity as a travel journalist. I once was threatened with a libel suit. The newspaper took it very seriously. In that case, truth was an excellent defense.

In your case, I applaud you for laying the heavy timber to make the TSA accountable. It’s a big job.

The TSA displays their abject weenieness, IMHO, in their efforts to obscure their bullshit. They have no moral authority. They don’t know what they’re doing. They have no special privilege and they are stuck on mission-creep….to Snoop and Control. OMG.

You ROCK. TSA S-U-C-K-S. They need to go back to Walmart. Or Love Canal. Or wherever, on GOd’s Green Earth, they came from. In my opinion, it appears to me that way.
Pavitara

How can I get tsa to stop stealing my stuff when I travel? insert a packing list in my luggage? Have them sign the inventory after inspection?
Frank Palmer

Chris,
Sorry to hear about this. When I posted the comment below in your post with the document I was mostly joking. I didn’t think they actually would come after you. But then again to just say it wasn’t stamped TOP SECRET doesn’t mean it is not a violation of some rule. And as I had pointed out the document you posted does specifically say that Unauthorized dissemination is prohibited by 49 CFR part 1520. I might have checked with my attorney first before posting but for sure you need to now.

If I was your source I would be pretty worried right about now. I hope they were smart and sent this to you in some untraceable way. But if not then how willing are you to protect your source? Unfortunately I think this is a very sticky situation.

I hope some sense of reason and common sense returns quickly with the TSA and airline travel. At least now the TSA can say see we weren’t lying about the liquid threat. I think we should all be very concerned because it is way to easy for this to happen. Think of how hard it would have been to strap some baggies of whatever liquid or powder inside your clothing. Now the real question is how do we prevent this? The puffer machines were a bust. And no one seems to want the virtual strip search machines. So how do we prevent this??? And why are we still hearing about failings of information to flow freely between agencies in the government regarding things like this? The father reported his strange behavior before this happened.

Good luck and let us all know how we can help.

Frank Palmer December 27, 2009 at 11:27 pm
Unauthorized dissemination of this document or information contained herein is prohibited by 49 CFR Part 1520 (see 69 Fed. Reg. 28066 (May 18, 2004).

Hey where did you get this from Chris?? I hope the goons at TSA don’t show up at your house. ha ha
Bob Slydell

Just tell them it was left on your doorstep or that it was given to you anonymously and you don’t know who it was.
Pingback: TSA=Abject weenieness=FUBAR | Alaska TravelGram
Pingback: Flying With Fish » The Fallout From SD-1544-09-06 : The Feds At My Door
Rocky

@Noah

My point was more that it’s ridiculous for the TSA to go after people like Chris for posting this.

Any document that is going to be disseminated to thousands of people will be leaked (especially low level staffers w/o security clearances) and it should be written with the expectation that it will be leaked.

You can bet your paycheck that every email that is sent by senior leadership at companies like Microsoft, Google, Yahoo! etc. to the entire staff is written with that expectation.

And there’s also the eventual disclosure of much of the contents by the actions that the carriers are supposed to take. Did they expect pax not to post that they weren’t allowed out of their seats for last hour b/c of new “security” restrictions from TSA?
ac

HELL NO! Find some pro-bono representation. Call the ACLU, EFF, RCFP (http://www.rcfp.org) and anybody else you can find on Google. I’m sure you will find somebody willing to represent you.
Eveliny Bastos-Klein

My husband, who is a lawyer, also suggests you look for the ACLU or other. It seems that at this point you might have to file a motion for protective order to protect you against having to produce the information and to provide you with additional time to explore your options.

DM me if you want to chat with him.
http://www.gadling.com/bloggers/tom-johansmeyer Tom Johansmeyer

Chris– congratulations on the subpoena; the TSA has told you you’re doing a great job in the only way it knows how.

To all of you who talk about the “right” to protect a confidential source, you’ve chosen the wrong word: it’s an obligation. Period. If you have someone who is willing to talk about something sensitive so the rest of us can benefit, you have a duty to protect that person’s identity.

Chris, you definitely have my support.
http://missexpatria.wordpress.com Christine

Absolutely, positively lawyer up and let him or her speak for you at ALL TIMES.
Mike

Wow, I am 100% behind Mr Elliott on this one! I also think I know who sent him the documents… Mr John Dough. lol

As mentioned by scores of others, fight for the freedoms granted in the constitution and consult with an attorney and whomever else you can think of.
Lianne

Fight the man Chris! Another long time reader who gives you her full support!
Ames

So typical – they have their own blunders which are front page news and feel the need to go after something as readily available as this! No wonder they could not put the pieces together to find the Christmas Undies Bomber, he did not post on a website! I whole heartedly support your fight!
Wrona

Wow Chris!! Definitely get yourself to a lawyer of some kind, whether a personal attorney, the ACLU, or some other organization ASAP!!!

Heck, I’ve seen this document from multiple places – are they going to go after everyone now?
cschelthoff

Wow, I somehow assumed that with Bush the Lesser out of office we could expect a return of our civil liberties. Perhaps it’s time for a wholesale cleaning at these puffed-up, self-important bully agencies.
frostysnowman

Unbelieveable! While it’s good to know that the TSA rep played it cool so as not to worry your family, I can’t believe that my tax dollars are hard at work coming after you/your source about this issue. Don’t give up without a fight – we are all on your side. And maybe there will end up being a way for you to exploit the “free publicity”, as Jay suggested, to draw even more attention to these issues.
P.J. Zornosa

Call your attorney, now. Get a Federal attorney. Now.

Obviously you hit a nerve. TSA and Homeland Security are a joke as far as a complete lack of effectiveness. Another bungling by the Bush administration.

Your readers WILL support you. Really. Don’t let them push you around.

I do not understand why they don’t just perform additional security checks on those persons suspected of being terrorists – those on their “watchlist”.

It’s really not that difficult in this age of computers….one would think.
Darrin

So instead of catching terrorists, they go after bloggers who got ahold of their stupid security procedures that make them look like idiots.

Standard big government.

How about they just act like professionals and admit their SD was crap and a knee jerk reaction. Rescind the worthless procedures and focus on keeping terrorists trying to kill us all off the plane in the first place.
http://www.claws-and-paws.com/ Douglas Muth

You’re a journalist and you have certain legal rights. But I don’t think you need me to to tell you that. ;-)

If you want to fight it (and I encourage you to do so), put me down for a donation to your legal defense fund.
Pingback: December 30, 2009 « the haiku diaries
Dave Weiner

I’m with everybody else. Get yourself a good lawyer, protect your sources, and if you put up a link to a legal defense fund, I’m there with a donation.
Raven

Maybe they could use that manpower to start looking more closely at terror watch lists and who they give Visas to rather than harassing journalists.
Justin

I think while all you guys are gun ho here, you forget some very serious things. The U.S. isn’t the free place it use to be. We have the Patriot Act, NSA Wiretappings, etc. Speak out as you might, don’t kid yourself people. The government is going to do what it damn well pleases. Matter of fact, remember the New York times Journalist who spent 85 days in jail for FAILING to disclose her source.

http://www.usnews.com/articles/news/national/2008/07/29/judith-miller-the-media-shield-law-is-long-overdue.html

Thanks to the Bush Administration who took us down this slippery slope, and eroded Consumer, Media, and our Civil Liberties, you’re pretty much screwed Chris. I hate to take the devil’s advocate here. However, once you give someone power, they damn well aren’t going to return it. Obama doesn’t seem to keen on bringing things back to old, either, contrary to his “promises”. Best bet, get a DAMN GOOD lawyer and a BIG legal fund. Maybe ask your readers to donate.

As it stands, SHIELD (Legislation to protect Journalists against such threats) has NOT PASSED. It has stalled and been stripped.

So while all you guys here talk tough, Chris has one hell of an up hill fight.
http://elliotorg Pamela

Your a reporter, aren’t your sources as well as yourself protected under some amendment?
RegularJoe

Why bother with a lawyer? Just turn to your loyal minions for advice, ask them what they would do, collect their C-notes and validation.

But by all means DO NOT reveal your source! I, for one, would love to read your prison blogs.
Elfwreck

“All documents, emails, and/or faxsimile transmissions”…

So if it were handed to you physically, you’d have nothing to turn over. The subpoena doesn’t say anything about giving them information like names or times, just specific documents. Huh. Doesn’t even say anything about non-email/fax communications, like blog comments, or a twitter post containing a link to Scribd. (Well. If you get email notification of blog comments, I suppose that counts.)
Justin

On a side note,

Chris really has 4 options here:

1) Disclose his source. There by, shredding his credibility in journalism.

2) Contact ALL his friends (CNN, etc) and create HUGE NATIONAL coverage of this issue.

3) Get a good legal team.

2+3 and Fight…BUT be prepared for #4

4) Being if you lose, you may be forced to either roll on your source or suffer the fate of the New York Times journalist, Judith Miller.

Either way, I think bringing NATIONAL HARD CORE PRESS would be a great jump start to getting the SHIELD legislation passed. While they STRIPPED the language to cover unpaid bloggers, paid journalists would be protected.
Abhi

If a former attorney general of USA could do it, I am sure you can too Chris. I am guessing here and I feel I am quite sure that you “HAVE NO RECOLLECTION of the INCIDENT”.
Pingback: Free Flight Video Magazine » Blog Archive » Homeland Security Subpoenas and Search Computer of Two Bloggers
Cheryl

I don’t imagine it is too hard to find you, so the person who left it in your mailbox was smart and didn’t leave their name and address, under the potential threat of a law suit, would you? I too will support you in need, if all your readers chip in a little bit, it should add up!
Pingback: TSA plays hardball with airline blogger over security directive | Tnooz
Pingback: The chilling effect: TSA tries to plug a leak by slapping travel bloggers with subpoenas | Upgrade: Travel Better
David Young

Contact the ACLU. The TSA seems to have a problem with that pesky First Amendment thingy….
Topher

Wow, this is ridiculous. Add me to the chorus of readers who would be more than happy to pitch in toward a legal defense fund, if it’s needed. Hang in there Chris, and thanks again for all you do.
CM

I’m a longtime reader, who has not commented until now. I just wanted to throw in my support as well. Thanks for all your do, I enjoy reading your blog and have learned a lot from your posts.
Pingback: Airline News
http://www.gadling.com/bloggers/tom-johansmeyer Tom Johansmeyer

@Justin– Judith Miller didn’t “fail” to disclose her source; she refused. There’s a big difference. Any journalist who isn’t ready for this sort of (potential) battle shouldn’t use anonymous source to write about sensitive matters. Period.

I agree that a federal shield law is long overdue.
Ryo

I don’t think this would be a great test case to rally support for the SHIELD law. What was done here is a kin to publishing/airing troop movements in real time on the battlefield. That security directive was issued under serious circumstances to try and keep people safe and potentially save lives. When deciding to post something that is marked secret, especially by a Government agency, you have to weigh if it is really something you should publish just because you have it. Frankly, it shouldn’t have been published, and it shouldn’t have been leaked.

You indicate that they will expire soon, why not wait until after the directive expired? Because you might lose your scoop?
Eddie

I agree with the comments above, you need to alert the mainstream media of this attack on the first amendment. I am sure that there will be attorneys out there who would love to take on the TSA in a first amendment case. Your source should be kept confidential, but the more attention paid to this by the media the better. Wishing you best of luck!
Brian C

There was nothing in the security directive that didn’t come out within 24 hours of implementation from a few interviews done by local TV stations in the international arrivals hall of their local airport. Or on the BA webite. Or the Air Canada website.

I agree with other readers that this is a first amendment issue. A free press is the cornerstone of democracy. We’ve given up a lot of freedoms since 9/11, this should not be one of them.

Thanks for doing what you do.
Matt

This cannot be the full text of the subpoena, or else it is plainly (and facially) invalid. It must be issued pursuant to a proceeding, the caption of which should appear at the top of the page. This is significant, because the standards for quashing a subpoena require balancing the purpose for which the information is sought and the difficulty of accomplishing that purpose against the burden on the subpoenaed witness.

It makes a big difference if, for instance, this was issued because TSA knows of someone who has been selling falsified TSA directives to travel journalists in order to undermine the sense of the public that TSA is doing its job (no, I do not think this is going on here. But it would be a different kettle of squid if it were).