Dialogue with the TSA Privacy Officer

From: Edward Hasbrouck “edward@hasbrouck.org”
To: Pietra, Peter, TSA OCC “Peter.Pietra@dhs.gov”
Subject: Re: Follow-up to our conversation in San Francisco
Date: Sun, 16 Jul 2006 22:33:24 -0700

On 10 Jul 2006 at 14:32, Pietra, Peter, TSA OCC “Peter.Pietra@dhs.gov” wrote:

[Pietra:] As promised, I’ve looked into the incident you mentioned to me.

Thank you. I trust that you are retaining the records of your investigation (all documents and records that you reviewed, e-mail and paper correspondence, interview notes, airport videos, etc.) as responsive to my FOIA and Privacy Act requests, and I look forward to receiving them shortly and to learning more about what happened to me, about your investigation, and about the basis for your conclusions.

I have several specific questions about your most recent message, as detailed below. But your message makes no mention at all of what I believe to be the more significant issues, as raised by what happened to me, my article, and my previous correspondence with you.

Accordingly, I invite you you to address these unanswered questions for me, my readers, and others interested in clarifying their rights and obligations when interacting with persons claiming to be from the TSA:

1. Were you able to determine whether (A) the man with the badge that said “Airserv” and [who] said he was a TSA employee and/or (B) the man in mufti who identified himself to me as “Mr. Graham” and said he was a TSA employee and “the TSA supervisor on duty” were, as each of them claimed to me to be, TSA employees? If either of them was not a TSA employee, what action, if any, has your office taken or is it taking? What redress, if any, is available to me, and through what point of contact? Were you able to obtain any identifying information concerning either of these people, so that I can more fully identity the subject of my complaint(s)?
   
   
2. By what, if any, methodology could I have determined, or could my readers or anyone else in an airport determine, whether someone claiming to be a TSA employee, and/or claiming to be acting or making demands on behalf of the TSA, is in fact a TSA employee or agent? What is the proper methodology and point of contact for reporting suspicious, questioned, or unverifiable claims by persons in airports to be TSA employees? What redress is available, through what point of contact, if a person who might not, in fact, be a TSA employee claims to members of the public to be a TSA employee, and/or makes demands or gives orders to members of the public under color of a possibly false claim to be a TSA employee?
   
   
3. Does the fact that I was not permitted to travel as a selectee, by consenting to a more intrusive search for weapons or explosives, but without opening my passport to the person with the “Airserv” badge, constitute a violation of TSA policy? If so, what action, if any, has your office taken, or is it taking, and what redress, if any, is available to me, and through what point of contact? If this was not a violation of TSA policy, has the TSA’s policy changed since the statements made by counsel for the TSA to both the Federal District and Circuit Courts in Gilmore v. Golzales , and in your latest message to me?

[Pietra:] I don’t find any matters that would constitute a violation of the Privacy Act or that may otherwise be of concern from a broader privacy viewpoint.

In general you appear to have mistakenly attributed all actions at the airport to TSA, when in fact there are several organizations responsible for security functions.

I’m curious what caused it to appear to you that I had “attributed all actions at the airport to the TSA”. Please let me know.

As I reported, the incident occurred in substantial part specifically because I did not attribute all actions at the airport to the TSA. If I had done so (as you claim to believe), why would I have questioned the claim of the person with the “Airserv” badge to be a TSA employee, or even asked him in the first place who he was or by whom he was employed?

As I listed in my article, I dealt with at least five individuals or groups of individuals at the airport. I reported no certainty that any of them were TSA employees, and I do not know how I could have then, or could if the situation were repeated, determine which, if any, of them were:

• (A) The person behind the United Airlines counter, who I presume (although I do not know) was either an airline employee or a contractor, and to whom I showed my passport in compliance with the conditions of carriage in the United Airlines tariff (although while neither questioning nor conceding that it is lawful or Consitutional for an interstate airline common carrier to enforce such terms in their tariff).
  
  
• (B) The person with the badge that said “AIRSERV”, who claimed to me to be a TSA employee, but who I suspect (but do not know how to determine, other than by asking you on behalf of the TSA to investigate) was not in fact a TSA employee, to whom I opened my passport under duress, in reliance on the statement by “Mr. Graham” that I would not be allowed to travel, even as a selectee and even if I consented to a more intrusive search for weapons and explosives, unless I opened my passport to him.
  
  
• (C) The person who identified himself to me as “Mr. Graham”, and who claimed to me to be a TSA employee and to be “the TSA supervisor on duty”, to whom I identified myself by name and offered to open my passport if he demanded it as a TSA employee. His claims to be a TSA employee and supervisor seemed plausible but unverifiable, and I have expressed no opinion as to the truth or falsehood of his claims to me. I look forward to the results of your investigation on this point, and to any evidence you may have obtained as to the truth or falsehood of his claims.
  
  
• (D) The two conspicuously armed people who claimed to be police, but who ordered me to stay too far away from them to read their badges (even if I were sufficiently expert in police credentials to verify them, which I am not). I presume that they were in fact some sort of police officers, but I am insufficiently familiar with the particularly large number of police agencies in the metropolitan Washington area to know with which police agency they were associated. Again, I look forward to the results of your investigation, at a minimum so that I can identify the police agency, and/or the specific police officers, so that I can request any of their records which you don’t have.
  
  
• (E) The people conducting what I thought constituted the “screening” or “checkpoint” proper — the walk-through gate, the conveyor belts and screening devices for carry-on baggage and other personal property, the “wanding”, the opening and search of personal belongings, and in my case the interrogation and the removal from my carry-on baggage and copying of documents — who I presume to have been TSA employees but none of whom presented any credentials (and which credentials, even if presented, I would have had no way to verify), who may have been — as I have been told that they are at my home airport, SFO, and some other airports, the list of which I have not memorized — TSA contractors or unrelated persons.

I was unable to get close enough to any of them to read their badges in full, and I do not know how, even if I had read them in full, I could reliably have determined their legitimacy.

As for the specific issues that you did discuss:

[Pietra:] Your blog implies that you were accosted by an Airserv employee while walking to the checkpoint. Based on my own experience flying out of Dulles Airport, and confirmed by my discussions with TSA personnel at Dulles, that is clearly not accurate. Airserv employees are stationed at the lines leading to the TSA screening checkpoint.

The statements made to me by “Mr Graham” and by the police all used conditional language (“If you enter the checkpoint…”), on the basis of which I concluded that, at least in their belief, I had not yet entered the checkpoint, but was still merely “approaching” it. I so reported. Was what I was told, or my inferences from it, not correct, in your view?

At what point does the TSA consider that “the checkpoint” begins? How can a traveller determine the line beyond which, if and when they have crossed it, they may not retreat or withdraw their consent to search?

[Pietra:] As you well know from your own research linked to your blog, Airserv is a contractor to the airlines that checks the boarding pass against the passengers’ identification to ensure that they are a ticketed passenger permitted to enter the screening checkpoint.

I linked to a Web page on which it is claimed (by whom I know not) that a company called Airserv acts, in some unspecified cases, as a contractor to some unspecified airlines and/or airports. I had no access to the Internet during the incident I described; I don’t necessarily believe everything I [read] on the Web; and I don’t know if Airserv even claims to contract with United Airlines at Dulles. Your claim that I “well know” any such thing is both incorrect and unsupported.

[Pietra:] As you state in your blog, they carry badges that identify them as Airserv employees and wear Airserv uniforms that are distinct from TSA uniforms. Either you had reached the head of the line to enter the screening checkpoint, or were standing in the line to enter the screening checkpoint when the Airserv employee asked for your identification as part of their official duties as a contractor to the airlines ensuring that only ticketed passengers were entering the TSA screening checkpoint.

As I reported, I have been informed in writing by an official spokesperson for United Airlines that their conditions of carriage impose no obligations on their customers with respect to anyone other than airline employees. What is your basis, if any, for your claim to the contrary?

[Pietra:] In either event, the request was entirely appropriate, and your professed concern that this was an individual seeking to engage in identity theft is unreasonable.

As I noted above, one of my most fundamental unanswered questions remains how I or my readers can determine whether such a request is legitimate. I look forward to your elucidation of the process by which this can be done.

[Pietra:] TSA requires airlines to request identification to confirm that the individual holding a boarding pass is the same individual issued the boarding pass.

As I reported, I had already shown my passport to a person who I believed to be an airline employee at check-in, and I volunteered to the person with the Airserv badge, and to “Mr. Graham”, that I would be willing to show it again on demand of any United Airlines employee.

[Pietra:] It does not require airlines to prohibit entry to individuals who do not show identification but airline security plans may be more rigorous than TSA requirements.

To the best of my knowledge, I was never denied entry by “the airline”, so this is of no relevance. Did you receive any information to the contrary from United Airlines, or anyone else?

[Pietra:] I find no privacy issues in your version of events. You had already shown identification at the ticket counter so you cannot have an objection to showing identification,

Do you mean to imply that, in your view of privacy, someone who is willing to show their passport to the airline must necessarily be willing to show it to anyone who asks for it? Or that a person who shows documents to an airline thereby waives any expectation of privacy in those documents, with respect to third parties? I don’t want to put words in your mouth, but I’m not sure how else to interpret your inference, from the fact that I once showed [my] passport to one particular person, that I “cannot have an objection to showing identification.” Please clarify your meaning, so that I can report your views accurately, as the “granularity” of privacy expectations seems a fundamental issue for a privacy officer.

[Pietra:] and you were asked for identification by authorized and uniformed Airserv personnel so I see no issue there.

As I stated at the start, the issues are (A) whether they were, as they (I suspect falsely) claimed to be, a TSA employee and (B) how I could verify whether they were, in fact, a TSA employee or authorized (in some other way I don’t know) to demand that I show my passport.

[Pietra:] It is not possible for me to evaluate your demeanor during the incident, but your demeanor may have played a role in the request for police intervention which resulted in more extensive questioning by the airport authority police than would have been the case in routine screening by TSA.

You mention that you were repeatedly told that if you entered screening, you could not withdraw. That instruction is correct. Once you enter TSA screening checkpoints, you may not withdraw. You may choose, prior to entering the checkpoint, to show identification, submit to additional screening, or decline both and leave.

As I reported, I was told specifically by “Mr Graham”, who was also telling me that he was the TSA supervisor on duty, that this was not in fact an option. What is the basis, if any, for your claim to the contrary? If I wished to exercise the option to submit to additional screening, in lieu of showing identification, what course of action should I have followed, what should I have said, and what should I have done to preserve my rights when I was told that this was not an option? What, if any, redress is available to a person who is denied passage on an interstate airline common carrier? (Isn’t interference with passage on an interstate common carrier a Federal civil rights offense, the more so when committed under color of a claim to be a Federal agent?)

[Pietra:] Those are the same choices expressly discussed by the court in the Gilmore decision that you note in your blog.

I understand. That is precisely why I continue to ask whether I was incorrectly advised by “Mr Graham”, or whether TSA policy has changed.

[Pietra:] The only documents photocopied by TSA were the boarding pass and the identification that you presented.

What is the basis for your claim that I “presented” any identification to the TSA? As I reported, “Mr. Graham” had specifically told me — when I volunteered to open my passport for him as a TSA employee if he told that it was required — that I was not required to do so. And I did not. Any identification or other documents copied by the TSA were taken from closed compartments inside my carry-on baggage, wallet, or money belt.

[Pietra:] Copying those documents assists in avoiding disputes over identity during civil or criminal enforcement proceedings.

Does the TSA assert a right to search carry-on baggage or other personal belonging for identifying documents or other evidence, or are TSA searches limited to searches for weapons and explosives?

[Pietra:] Your claim that TSA copied other documents is incorrect.

I have never claimed that the TSA copied other documents, and your suggestion to the contrary suggests that you read my report carelessly, if at all. I wrote that, “TSA staff took various of my papers and documents away to photocopy them (I recognized some of the copies that one of them was carrying when he returned).” I have no knowledge, and made no allegation, as to exactly what the documents were — I was under detention, and my view was obstructed.

[Pietra:] Your request for records associated with the incident is being processed under the FOIA and Privacy Act in order to provide you with the greatest access possible. You should expect a response directly from the FOIA office. I note for you that TSA does not have a copy of the airport police report and you will have to request that from them.

I’m intrigued that you didn’t feel it necessary to obtain the police report in order to complete your investigation or come to your conclusions. I look forward to seeing what you did review.

Finally, you said in your previous message that “The TSA Office of Inspections investigates allegations of criminal misconduct within the agency, or you may take your claim to a law enforcement agency.”

As I noted in my earlier message, I have been unable to find a point of contact for the “Office of Inspections” on the TSA Web site. Could you please let me know how to contact them, and forward to them my earlier, as yet unanswered, complaint of criminal violation of the Privacy Act by TSA staff and others, as attached, if it is not within your jurisdiction?

Sincerely,

Edward Hasbrouck

[Follow-up, 21 July 2006: Why was I detained by police at Dulles Airport? ]

[Follow-up, 28 July 2006: TSA report on what happened to me at Dulles Airport ]

[Follow-up, 28 September 2006: Kip Hawley is an idiot. ]

[Follow-up, 27 October 2006: TSA says their press releases are secret ]