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 AdministrationSUBPOENA 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 SecurityAUTHORITY
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.)
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Not satisfied with trampling on the rights of traveling Americans and shredding the Constitution and the rights guaranteed to us under the Fourth, Fifth and Fourteenth Amendments, now the TSA wants to go after the FIRST Amendment? They want to silence the press? They threaten a JOURNALIST for publishing less than flattering remarks about them? Gee, I guess me calling the TSA “The New American Gestapo” is even more appropriate.
These people don’t keep us safe, they create and maintain a climate of fear. As long as that fear is maintained, it justifies their existence. It’s time for that fear to END.
Count me in for a donation. Heck, this is BS, we live in a free country. I will take up arms to defend the freedoms that were given to me by creator.
I’d contact the person who gave you the information and ask them what they think, of course you know your phones are being monitored right? That lawyer may also be a good idea.
I have to thank you for what you do for me and the countless other photographers as we travel and keeping us up to date on what is happening, what we can and what we can not do. I hope this continues throughout 2010. I’d rather read it here then call an airport and get 200 voice-mails and fly uninformed!
LB
Hi all,
SA Flaherty is answering his phone. I just called him up to express my disappointment that they are attempting to stifle free speech. He was quite polite. Perhaps others would like to register their complaint with the way government agents harassing citizen journalism. This is a rather important issue I think. SA Flaherty’s number is included in the subpoena.
Paul
I wonder if the fact of this blog being read by tens of thousands of people had anything to do with Mr. Flaherty using ’sir’ a lot?
I would sit down and watch “Nothing But`the Truth.”
Sailor
Tell the TSA to go F*** themselves, smash, burn, and dispose of your Hard Drive or anything else that IDs the source, replace the HD with Windows 98 on it, talk to an attorney, let the attorney fight it out for you, and prepare to go to jail for a year because YOU SHOULD NOT REVEAL YOUR SOURCE!!! If you squeal, then you’re a bad journalist. Never give up your sources!!
Likewise, it’s time you understand what it means to be ANONYMOUS when you do something like what you did. Which BTW, is awesome! Good for you to expose the real TERRORIST of the TSA and DHS. Both formed under Bush to continue his reign of terror.
Fight the good fight, protect our rights and yours!
Woah. Ignoring the fact that there is no current Administrator of the TSA (appointment pending), this was signed by Department Counsel? Was there or was there not a judge who approved this subpoena?
Geez, you’d think that you were the panty bom-ber! These guys can’t protect us, despite their claims, from the bad guys so they go after an American blogger, now that makes me feel so secure. The clumsier and more incompetent the giant, the more he steps on the friendlies.
Paul;
There’s no need to harass these agents by phone, c’mon, what do you hope to accomplish with that?
One last cogent point – you are only disclosing SSI if the document you disclose is properly notated. Only you know if the text of the document you received contains the notation required stating it is SSI. If it did, then they have a prima facie case of knowingly disseminating SSI. If it did not, then the TSA needs to prove that the entire text of the document you published was SSI and then why it is.
This is an investigative subpoena which shows the ignorance of those conducting the internal investigation. If I am the investigator – I call you up and ask you where you got it first. You refuse to disclose a source – then I ratchet up the pressure but only after speaking with a few lawyers in the office about your status under the First amendment.
This is Daniel Ellsberg / Pentagon Papers simple: if you are a journalist the case applies – if not – then it does not. If you are a journalist – then you are protected – end of story. Ellsberg already did the time to establish the law.
El Capitan,
There was no harassment involved. Just a simple and succinct statement to a publicly-invested functionary (SA Flaherty) that TSA-issued subpoenas to journalists is an unconstitutional ligature of free speech. I’m not going out to protest or visit my congresswoman on New Year’s Eve but I can make a simple, non-violent demonstration of concern. Direct political action is underused in American public life, IMHO. Maybe I’ll start a website that will publicize each day’s most egregious act of government action against citizens who don’t have the legal resources to fight back.
Paul
This is simple. As the subpoena was not issued by a court, I’d ignore.
Get with your attorney. TSA can go to a federal judge later, but I’d throw this paperwork back in their face.
Well, I’ve often wondered where Col. Klink and Sergeant Shultz went after Stalag 13 closed. Apparently they are now running the TSA. Too bad these guys can’t keep the bombs off of the planes any more than Col. Klink could keep Col. Hogan from escaping.
How long until we replace the rest of the *cough* constitution with the remaining pages that have not yet been ripped out of Mein Kampf?
The polite subpoena server does not make up for the heavy-handed tactics of the storm trooper elite.
The nerve of calling any previous administrations a gaggle of jag-booted thugs. Maybe it takes one to know one.
After they finish passing their healthcare stranglehold package, they WILL be further emboldened with the knowledge that they can do anything. Their heads will further swell with power and in their drunkenness they will go after more and more of the priniciples and rights that most red-state red-blooded Americans hold dear. Kiss your ammo goodbye. In one form or another, they will make it impossible for most law-abiding citizens to own because it will be too wrapped up in red tape or too expensive or both.
My only question is….will the populace wake up before it is too late? Or, is the sleeping giant going to be chewed up little bite by little bite until it is too late to be able to do anything about it.
“What would you do?”
http://www.youtube.com/watch?v=i8z7NC5sgik
http://www.youtube.com/watch?v=08fZQWjDVKE
Death to the New World Order. God bless the Republic the Empire is on the run. We shall prevail!
Sec. 46104. Evidence
-STATUTE-
(a) General. – In conducting a hearing or investigation under
this part, the Secretary of Transportation (or the Under Secretary
of Transportation for Security with respect to security duties and
powers designated to be carried out by the Under Secretary or the
Administrator of the Federal Aviation Administration with respect
to aviation safety duties and powers designated to be carried out
by the Administrator) may –
(1) subpena witnesses and records related to a matter involved
in the hearing or investigation from any place in the United
States to the designated place of the hearing or investigation;
(2) administer oaths;
(3) examine witnesses; and
(4) receive evidence at a place in the United States the
Secretary, Under Secretary, or Administrator designates.
(b) Compliance With Subpenas. – If a person disobeys a subpena,
the Secretary, the Under Secretary, the Administrator, or a party
to a proceeding before the Secretary, Under Secretary, or
Administrator may petition a court of the United States to enforce
the subpena. A judicial proceeding to enforce a subpena under this
section may be brought in the jurisdiction in which the proceeding
or investigation is conducted. The court may punish a failure to
obey an order of the court to comply with the subpena as a contempt
of court.
—————–
So basically, they can issue a subpena, but can’t enforce it directly themselves. Let them go to a judge and see what the judge thinks of it.
I hope you and every American in America sees the value in a COMPLETE paper shredding system in thier home. Much like all the political and governemt offices seem to have these days so that when they are served a Subpeona, damming evidence or now gets bulk shredded to non-reconstructable dust. Hey, if it’s good enough for our government, then why not its citizens?
I hope they find out who gave you that security directive. Not only did that person violate thier professional morales but possible worse. There are things that Do Not need to be viewed publicly. Yes, call it secret or what ever you want but, there have been things done in this Country for many years and that is why many things are classified. Take the idiot who release the pictures from the prison with the detainees if you want to call them that. Was what they were doing right? I am not the one to answer that but, if they were gaining information that would save lives then YES it was needed to be done. Instead, the so call news, writers or what ever else reporters want to be called these days did MORE HARM then good just to get a story. So how many lives did that story save? NONE!! How many were killed by that srory? Right get a calculator….. So, I guess your safety on a plane is not worth it then? TSAneeds to do a job and that job is protecting every person flying in a plane. To be honest with you how they do it, I really don’t care as long as it is done. I’m sure all the families of 9/11 would probably say the same thing if TSAwas in place then. So, I hope when they find out who sent you that directive that when they get fired maybe they will come live with you and your family as I’m sure no other company will want to hire someone who gives out company information without having permission too. By the way, this is the first time I have every seen your site and it will be the last time. So called writers like you are nothing more then a scammer from the Bahama’s scamming people to make a quick buck……………….
I dare any of you to find a section in the United States code that defines United States in a way that lists all 50 states. They will either say the term includes the states, or refer to ‘the 50 states’, but they won’t use the ink to name the individual states.
@Steve C Since that was the last time you will see this site, I guess you won’t see my comment but for what it’s worth here goes….
>>I hope they find out who gave you that security directive. Not only did that person violate thier professional morales but possible worse.
Possibly. Or it could have been sent by any one of the thousands of people working at airports all over the world who were also supplied with the security directive. It was hardly a confidential document.
A scammer from the Bahamas? Er, no. Unless the Bahamas are a suburb in Washington DC.
Look, I’m an attorney, and there are serious issues involved here in what the TSA attorney, Dan Kuntz, and the TSA agents did to you. They have seriously violated your rights and I strongly recommend you consult an attorney. Here’s why:
1. You don’t send Federal agents to serve a SUBPOENA. Federal agents serve search warrants, not subpoenas. Subpoenas are generally sent by certified mail or served in person by disinterested, third person process servers. Subpoenas are subject to a motion to quash for a number of reasons, such as being overbroad or vague, or not relevant to an ongoing criminal investigation or civil action. Warrants are not subject to motions to quash prior to their service, an agent just shows up and takes what is specified in the warrant. That’s why warrants are harder to get, they require a judge to sign off on the attorney’s certification that probable cause exists that a crime was committed and the search will reveal evidence of the infraction. In this case, Mr. Kuntz knew he could not secure a warrant, because a judge would not have signed off on his flimsy suspicions and would not give him the authority to take your computer to try to hunt down a whistleblower (which is a purely intra-agency matter).
On the other hand, by going with a subpoena, Kuntz knew his subpoena was definitely subject to being quashed on a number of counts, as it asked for every piece of information you had regarding a TSA directive, whether such information was relevant to an ongoing investigation or not. Kuntz knew any competent attorney would tell him to go jump in a lake, and he would never get anything from you. So Kuntz went way over the line. Instead of mailing or serving by process server, Kuntz sent Federal agents to “serve” his subpoena in an attempt to intimidate you into thinking they had a warrant, rather than some wish list a lawyer drew up without any court supervision. This is as blatant as a Federal attorney can get in trying to suppress protected free speech. Mr. Kuntz clearly intended you to believe you were required to turn over your personal computer to the agents right there, and those agents had orders to threaten you. This is an abuse of an unrepresented party, but more importantly, it is an action which calls our entire profession into disrepute. Mr. Kuntz should not be entrusted with the power of the government.
2. Under Rule 11 of the Federal Rules of Civil Procedure, Kuntz’ signature serves as his certification to the court that the subpoena was not served for purposes of harassment, and that he has a reasonable basis to believe a civil action exists and he is properly investigating said action. As I mentioned above, this case is as clear as it gets. A government attorney sent Federal agents to intimidate a citizen in his home, making threats against his livelihood and served his subpoena in an out of the ordinary fashion for the sole purpose of harassment. Kuntz is liable to you for sanctions under Rule 11, in the form of your attorneys’ costs for dealing with his unwarranted harassment. DO NOT LET THIS GO.
3. The agents involved knew what they were doing was wrong. During their questioning of you, they made clear, direct threats to your livelihood, and seized your property without a warrant, using the invalid subpoena as a basis for their entering your home. Any lawyer worth his salt would tear these clowns up. No investigator from any other Federal agency would have tried such a sleazy move, but TSA is and always has been the bottom of the barrel. Yet, these guys have just done a personal favor for a career attorney by going over the line, and Mr. Kuntz will remember them when the time comes to recommend them for promotion. Agents willing to abuse citizens’ rights in this fashion cannot be allowed to advance in the government. Again, DO NOT LET THIS GO.
I strongly recommend contacting your counsel and getting his opinion. If you don’t want to spend any money, there are numerous groups willing to call Mr. Kuntz to account. Again, I really have to strongly recommend not to let this go.
We get the government we tolerate, for good or bad.
I agree with “Some Random Guy” above. TSA is a private organization trying desperately to “force” you into handing over your computer with a … subpoena. Ha. I would sure as hell sue TSA for harassment.
I read on Fox News Web Page where one writer is now calling the TSA To Stupid for America.. The writer went on to say that if you could not get comic releif from Letterman or some of the other comics on the Tele. just go to the TSA web page. It would keep you rolling with laughter. As I have never been to their web page I don’t know as it all does not matter to me as I do not, will not Fly. For those of you who do I would expect they do every thing they can to make flying safe. But here is the deal, Obama or his mouth peace Robert Gibbs wants to say it’s Bush’s fault this Detroit thing that happened. My question is this, at what time does Obama grow up and except fault for his own mistakes without looking to blame someone else? Obama has been in Office one year. At what point does fault become his ?
Good job and thanks for keeping the rest of us informed about all of this. I think it’s a healthy dose of transparency.
My opinion is that you shouldn’t have to tell them who sent you the memo. (Assuming you even know, and from what I’ve heard you don’t.) You’re right to talk to a lawyer though. (I don’t even play one on TV.)
So many people are missing the point here. The feds are NOT after the blogger. The feds are after the person who leaked the security directive. From what I can see of the referenced regulations, Elliott hasn’t violated any federal regulations or laws. Ignoring an administrative subpoena isn’t even an issue – until it’s a court-issued subpoena. And as for exactly who it was that leaked that security directive – it isn’t just TSA employees who have legal access to that document, but so do literally HUNDREDS (if not thousands) of airline employees. And yes, the stuff in the leaked security directive can be seen (and hence, known) by any person flying, I find it rather alarming that someone’s out there who might put MY safety at risk by leakig security directives to the public (to include Al Qaeda). First, the leaker is total scum for violating his or her promise to protect the information. And second, who’s to say what this person will take upon themselves to broadcast to the world? How to defeat the luggage scanners? Leaking this security directive wasn’t about blowing the whistle on government abuses – this was about nothign but “Look who I am and what I have….”
Here here to you for not caving to pressure and giving up your source.
The first thing I’d do is tell my kids that no Americans have any friends at the DHS/TSA, regardless of how much the cats like Agent F. Hitler sent friendly guys to round up Jews, too.
Joseph McCarthy is apparently alive and well. Obama should be ashamed to see this happening under his watch. As another poster put it, this deserves another donation. As a frequent traveler, I don’t mind procedures that actually make me feel or be safer, but I abhor procedures that just make an agency feel busier or more important or more powerful or more budget entitled. I would feel very safe if El Al security took over for TSA….
Good job and thanks for keeping the rest of us informed about all of this. I think it’s a healthy dose of transparency.
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