Please help in three ways:
a) email House OGR yourself: [email protected]
b) call your senator and representative: contactingthecongress.org (US citizens)
c) share this as widely as you can.
Please refer to me by name, and express support for the specific things I've asked them to do (if you agree):
* have formal hearings and meet with me
* force TSA to publicly disclose all their secret regulations, and hold full APA rulemakings
* force TSA to repeal its secretly-mandatory-AIT rule and reform its liquids rule (see my replacement below)
* investigate TSA's refusal to obey, and active obstruction, of laws like the Rehabilitation Act and Freedom of Information Act (FOIA)
- support the FOIA Improvement Act, Senate Bill 337: congress.gov/bill/114th-congress/senate-bill/337
* reform 49 USC § 114(r) ("Sensitive Security Information") to prevent its abuse
* reform 49 USC § 46110 (review of TSA "orders") to allow lawsuits in district court, with no time limit for orders applicable generally or issued secretly, and no special deference to TSA's version of the "facts" — just like every other agency
* let pro se plaintiffs recover fees in court for their time if they win civil rights / FOIA cases against the government
Feel free to copy or crib from any of the below, or ask me if you have questions.
I'd appreciate a CC on emails or tag on other social media.
I know you value the many hours of work I do on the legal side (see s.ai/tsa/legal) — time for which I can't be compensated in court. Thank you very much for supporting me on Patreon; it helps a lot.
Many thanks for all your support.
FROM: Sai <[email protected]>
TO: House OGR Committee
SUBJ: TSA abuses: secret law; AIT mandate; FOIA; Rehab Act; liquids; SSI / §46110; Ehrler
Dear House OGR Committee —
There are several serious abuses by TSA — and Federal laws enabling those abuses — that I would like to bring to the Committee's attention for formal investigation and legislative fixes.
I would be happy to testify under oath before the Committee about any of these issues. Some of the accusations I make here are very serious — including felony obstruction of justice. I am willing and able to provide the Committee with evidence substantiating all of my claims.
The following is only a summary. Unfortunately, the list of TSA's abuses is not short, so this email is somewhat long even in summary.
Please let me know if you have any questions or comments, requests for documentation or elaboration, would like to talk by phone, or would like me to visit the Committee or any members in person.
1. TSA's body of secret regulations
TSA claims that all of its screening procedures are "orders" under 49 USC 46110(a), and SSI under 49 USC 114(r).
TSA lost in court about this in re. the optional-AIT rule; the court held that it was in fact a regulation that should have been issued per APA notice and comment, and ordered TSA to do so. See EPIC v. DHS, 653 F. 3d 1, 4-8 (D.C. Cir. 2011).
Nevertheless, TSA is still maintaining all of its other rules about passenger screening in the same manner.
I am currently suing TSA to challenge this, as I believe that secret law is anathema to a democratic society:
Sai v. Neffenger, No. 15-2356 (1st Cir.) - https://s.ai/tsa/legal/46110
I have a separate FOIA lawsuit that, among other things, requested all of TSA's policy and procedure documents. They were withheld in full as SSI, with the Vaughn declaration filed just yesterday.
Sai v. TSA, No. 14-403 (D. D.C.) - https://s.ai/tsa/legal/foia
I ask that the Committee force TSA to go through APA rulemaking, like every other agency, for all of its regulations — and forbid TSA from using SSI or § 46110 to make secret law or avoid meaningful challenges to its regulations.
(See also below re. § 46110.)
2. TSA's mandatory AIT rule
TSA only released its final AIT rule earlier this year — changing its AIT policy from optional to mandatory, based on completely secret criteria.
This was the subject of a recent letter to you by many privacy organizations, which specifically mentioned my case (at fn 8): https://cei.org/sites/default/files/TSA%20Congressional%20Oversight%20Letter%20-%2001132016.pdf
There are four separate lawsuits pending against this new rule, including mine:
Sai v. Neffenger, No. 15-2356 (1st Cir.)
Corbett v. TSA, No. 1515717 (11th Cir.)
Competitive Enterprise Institute v. DHS, No. 161135 (D.C. Cir.)
Electronic Privacy Information Center v. TSA, No. 161139 (D.C. Cir.)
I am the only person to sue TSA about it who has actually been subjected to this rule. I was ordered by a TSA supervisor to go through AIT scan or be refused travel, despite my consent to patdown. I refused, as neither willing nor able to go through AIT screening.
Although I eventually prevailed after escalating to a manager, I was prevented from traveling internationally — a right that I have as a US citizen.
AIT should be optional, not mandatory. There are many people for whom AIT is not workable — e.g. anyone who has implants; who is transgender; who has disabilities precluding them from standing unsupported, holding their hands above their head, for several seconds; etc.
It is also an invasion of privacy. Even with ATR, which doesn't show the operator the full naked-body image that the machine takes, the machine still does an extremely invasive search. For me, this raises 4th Amendment concerns; for others, it raises religious concerns and other as well.
I do not oppose the purely opt-in use of AIT, but TSA has made it mandatory — refusing to tell anyone what its secret conditions are for mandatory screening — even if passengers consent to patdowns, which are much more effective.
3. TSA's policy of violating FOIA
Put simply, TSA does not even attempt to obey FOIA's requirements for prompt access to records with a presumption of openness.
I have routinely gotten responses from TSA's FOIA office saying that they would take at least a year to give an initial response — or outright refusing to give a response date at all, in violation of 5 USC 552(a)(7)(B)(ii). I am far from the only one.
When TSA does respond, it uses SSI and (b)(5) exemptions to an extreme degree — and as below, if challenged in court, the SSI parts can't even be heard by the district court.
See e.g. OGIS' scathing review of TSA's FOIA performance:
4. TSA's policy of refusing to respond to Rehabilitation Act complaints
After multiple instances where I was abused by TSA because of my disabilities, and my civil rights violated, I filed formal complaints under the Rehabilitation Act in early 2013.
Despite being required to respond in 180 days, 6 CFR 15.70, TSA flat out refused to do so for over two and a half years.
In fact, records I obtained showed that TSA's office of chief counsel (OCC) directed the people handling my request to "not process" it — which constitutes felony obstruction of justice in a federal investigation.
Even after I sued, TSA could come up with nothing more in defense than "you can't make us". They were wrong — I won the case, and the court did force them to respond:
Sai v. DHS et al., No. 14-1876 (D.D.C. Dec. 15, 2015) - https://s.ai/tsa/legal/rehab_act
The Committee should investigate how often TSA has blatantly ignores its duties to respond to disability complaints (both timely and at all) — and how often (as in my case) they have actively covered up and obstructed the investigation.
It gets worse. When I received the response after litigation, the responses I got were ones that made factual claims directly contradicted by video TSA actually spoliated most of the video evidence from one of the incidents — despite both TSA and the airport agreeing to preserve it, and being subject of an ongoing federal investigation.
That's not even getting into the incidents themselves. See e.g. https://s.ai/tsa/legal/bos.
At BOS, among other things, I was selected for secondary screening specifically because of my disability and a shirt satirizing the DHS; subjected to almost an hour of search focused entirely on reading through my personal documents, medications, wallet, checkbook, business records, etc.; repeatedly deprived of the ability to write despite being mute and the screeners refusing to cooperate with my attempts to communicate in American Sign Language; had paper taken away from me by force when I wrote a protest TSA's unlawful screening; etc.
Full documents of the BOS incident are at the link above — including video, complaint, post-litigation response, appeal, records of the screeners' claims about what happened (which are directly contradicted by the video), etc.
5. TSA's policy of prohibiting liquids
TSA's current liquid policy is that they:
a) refuse to screen liquids in >3.4 oz containers, unless they first make a medical determination that an individual passenger has medical need
b) refuse to permit liquids to be carried, even if they have been cleared by objective testing (x-ray, ETD, LCS, etc)
c) refuse to permit liquids in amounts more than the medically unqualified screener thinks are "necessary" for the passenger to fly the next leg of their journey
d) refuse to allow contact lens solution, because it contains small amounts of hydrogen peroxide (this rule actually varies between airports)
This policy has been applied to me many times. I have a medical condition that requires constant access to liquids, and always consent to TSA screening my liquids, but TSA has repeatedly e.g.
* refused to believe that I have a medical need
* demanded sensitive medical info (despite having zero HIPAA compliance or medical training)
* limited my liquids to arbitrary amounts not sufficient for my full travels (which could easily be multiple days, e.g. for international travel or if there's an overnight delay)
* refused to allow me to use large liquid containers (which I require because they're more stable, spill less, etc)
* refused to give me access to my liquids during screening, even when I am having very visible symptoms such as muscle spasms, and clearly state that I have a medical need for immediate access to my liquids.
The liquids policy is patently absurd. It does nothing whatsoever to promote security; causes a total of billions of dollars of damages to people who have their water, perfume, food, or other provably harmless material taken away; actively harms the health of disabled people like me; and makes the United States a joke in the eyes of the world.
I ask that the Committee force TSA to replace it with a much simpler policy:
a) TSA must screen any liquid presented for screening if it has the technical capability to do so
b) TSA must allow any liquid that passes screening to go through, regardless of quantity
c) TSA must not ask passengers for any medical information, including mere disclosure of disabled status
This policy would have exactly one exception, for liquids that are actually dangerous — e.g. compressed oxygen or very high concentration hydrogen peroxide (not the sort in a medical kit or contact lens solution, but the kind found in a lab that's necessary for e.g. TATP production).
For dangerous liquids, TSA should follow the same policy that the FAA used to do: require medical documentation of necessity, and air carrier agreement that they are capable of safely transporting the item.
For everything else, people should be allowed to travel freely with their items, without facing interrogation by an untrained TSA screener asserting their petty authority to invent medical determinations and arbitrary restrictions on the spot.
Simply put, if someone wants to travel with a bottle of water, a liter of juice, or a gallon of shampoo, that's their right. Personal property that can easily be screened by TSA and poses no harm whatsoever should not be subject to confiscation at a screener's whim.
6. TSA's use of 49 USC 46110 and SSI to preclude meaningful (or any) review
This statute provides that any "order" of the TSA can only be reviewed within 60 days of issuance, and only in a court of appeals (where plaintiffs have no access to discovery).
TSA has successfully been using this statute, together with 49 USC 114(r), to say that "order" includes, e.g.:
* all of its policies & procedures, even if issued in secret
* all SSI based redactions to FOIA requests
Because 46110(a) says that they cannot be sued more than 60 days after the "order" is (secretly) issued — a time that courts have interpreted to mean anything from when it was signed, to when it was claimed in a Vaughn declaration, to when there was any observable indication of the policy being in force.
This basically means that any challenge TSA rules, or FOIA withholdings:
a) must be made within 60 days of some unknown date — after which nobody can ever challenge ongoing agency policy
b) has no access to discovery in court
c) has the court required to assume that TSA's version of facts is true, no matter how much evidence is presented against them
On top of this, people have to deal with the fact that essentially everything is labeled as SSI, 49 USC 114(r), so they are not even able to know the content of the secret law they're challenging.
I urge the Committee to
a) propose a bill repealing 49 USC 46110 in its entirety, or at minimum to limit it to 46105(b) orders — i.e. ones that are from an actual agency proceeding directed at some specific person, with notice given to that person of the order and the reasons for it, and
b) propose a bill repealing 49 USC 114(r) in its entirety, to be replaced by normal executive branch classification methods
As it stands, it is much harder to challenge TSA's screening rules than documents that have actually been classified as secret.
7. No lawyer = no compensation for time spent, even if you win.
In the one suit that has been decided so far, I won.
The court granted me an injunction, declared me to be the prevailing party, and ordered TSA to pay my costs. See Sai v. DHS et al., No. 14-1876 (D.D.C. Dec. 15, 2015 and April 15, 2016).
Laws like the Equal Access to Justice Act are meant to provide compensation for the time spent by those who prosecute such injustices and win.
As I cannot afford a lawyer, I won the case entirely on my own. If I had had a lawyer — which I tried to find, unsuccessfully — TSA would likely have had to pay for my lawyer's time.
Nevertheless, because of current Supreme Court interpretation (Kay v. Ehrler) of Congress' intent, I received not a single cent to compensate for the many hours of work and stress that went into that success.
I will not receive a single cent for my efforts, in public interest, to force TSA to disclose their policies through FOIA litigation.
I believe that this is a mockery of the notion of "equal access to justice". Even though I have to spend at least as much time and effort as a lawyer to vindicate my rights — and even though I win — where a lawyer would get to recover fees for the time, I get nothing.
I urge the Committee to propose a bill making clear that Congress intends
everyone who prevails in a civil rights action against the government — not just those who can afford a lawyer — to have reasonable compensation for the time and effort of doing so.
I am not a lawyer, nor indeed anyone of particular importance. I have no desire to be a public figure.
I am merely a citizen who strongly believes in civil rights and open government, and the duty of all people to hold their government accountable.
My disabilities have made me the target of repeated abuse by TSA, but civil rights are not traded in because of disability. I am poor, but poverty does not lessen my right to vindication.
I tried very hard to remedy TSA's abuses through proper channels.
I filed Rehabilitation Act complaints, FOIA / Privacy Act requests, etc. I tried repeatedly to settle with TSA over multiple years.
In return, all I got was years of stonewalling and TSA's outright refusal to obey the law.
After all of those efforts failed, I've had to sue to vindicate my rights.
Ordinary individuals like me, especially ones who have disabilities or who are poor, should not have to go to such extremes to have their civil rights respected and protected.
On top of all the other obstacles we already face in fighting an agency with a flagrant disregard for the rule of law, we should not have to overcome laws like 49 USC §§ 114(r) and 46110 that make holding the TSA accountable nearly impossible.
I urge the Committee to investigate these issues thoroughly, hold hearings, and to pass legislation to cure the defects in Federal law that allow TSA's abuses to continue.
Again, I would be happy to testify under oath, provide evidence, discuss these matters informally, and otherwise assist the Committee however I am able.
Please let me know how I can help.
As you may imagine, the process I have gone through so far has been very wearying, and I would like to know that this effort will not result in a brushoff.
I would greatly appreciate if you could send me substantive feedback on the above issues, and what to expect going forward, so that I can have assurance that I have not simply hit another wall in trying to get the Committee's assistance.
Please feel free to contact me by email or phone, as you prefer.