"Kip Hawley is an idiot."

On Monday the USA Transportation Security Administration revised its ever-changing but still secret rules (check out this parody if you want to try to keep track of the changes) for what it will allow airline passengers to carry onto planes.

According to the offiical announcement by Kip Hawley, the Assistant Secretary of Homeland Security for the TSA:

At the checkpoint, starting when airports open tomorrow morning, Tuesday, September 26th, travelers will be able to carry on small, travel-size medicines and toiletries — whatever they need — as long as they are in containers of three ounces or less, brought to the checkpoint sealed inside, one, one-quart size — now, one-quart size is a little bit larger than sandwich size — sealed in a one, one-quart size clear plastic zip-top bag.

I guess it’s designed to promote the sale of “travel-size” toiletries. And zip-lock ® bags.

Tuesday morning, frequent flyer Ryan Bird showed up at the airport in Milwaukee with just such a bag of small toiletry containers — on which bag, with a felt-tip marker, he had expressed his opinion of this new scheme: “Kip Hawley is an idiot.”

The TSA called the cops, who detained him for 25 minutes while they took his passport, ran a check ogf NCIC for any outstanding warrants or other criminal records, and photographed his zip-lock ® bag (perhaps to be used as evidence against him ?).

The TSA’s response to press inquiries is remarkably disingenous:

TSA spokeswoman Yolanda Clark said Bird was free to express his opinion and there is no prohibition on writing on bags.

“The passenger was never detained by TSA. Local law enforcement briefly interviewed him and determined he had not broken any laws and he was allowed to fly,” Clark said.

OK, he wasn’t detained by the TSA. He was detained by local police, at the instigation of the TSA, in retaliation for exercising his First Amendment rights. Does that make it OK?

The whole incident is remarkably similar to what happened to me a few months ago, when I was detained by Metropolitan Washington Airports Authority (MWAA) police at Dulles Airport in Virginia after I tried to find out who the people were who wanted to look at my passport, and claimed to be, then admitted they weren’t, TSA employees.

The MWAA claims to be subject to neither the Federal Freedom of Information Act nor the Virginia FOIA, despite an opinion of the Virginia state government’s FOIA Advisory Council that they are.

Nevertheless, the MWAA did eventually respond to my requests by turning over its dispatch logs showing the “reporting party” (i.e. the person who called the police) as being “ROGER (TSA)”. So like Mr. Bird, I was detained by local police, but at the instigation of the TSA. And as with Mr. Bird, the TSA, lacking any legal basis themselves for a demand or search for evidence of my identity, used the detention by local police as a pretext to get a copy of my passport, and check out my NCIC file.

I expect that, if Mr. Bird ever gets the report the TSA people told him they were making, he will find that as in my case they wrote down Screening Passengers by Observation Techniques (SPOT) as the excuse for calling the cops on him. It’s a difficult-to-discredit cover story for almost any sort of discrimination, bigotry, retaliation, or simple arbitrariness by front-line TSA officers.

I wish Mr. Bird success in getting to the bottom of what happened, but I’m not optimisitc. I’ve had no response from the TSA Privacy Officer to my questions about redress against TSA staff, or people falsely claiming to be TSA staff. I have a follow-up FOIA request still pending, specifically including the records of the Privacy Officer’s response (if any) to my complaint. But in the meantime, as Prof. Michael Froomkin has pointed out , the TSA has moved to exempt from the Privacy Act the files that would contain any such records.

The best way to keep this from happening again is to make it a movement. Just imagine 50 people a day walking in, putting down a bag that says, “Kip Hawley is an idiot”, and walking on. Try it yourself, and see what happens. Here’s how: KipHawleyIsAnIdiot.com

[Update, 28 September 2006: Ryan Singel has more from both Messrs. Hawley and Bird .]