Amicus Curiae Brief — Gilmore v. Gonzales (No. 06-211)

No. 06-211

IN THE

Supreme Court of the United States

JOHN GILMORE,

Petitioner,

v

ALBERTO GONZALES, ATTORNEY GENERAL, et ai.,

Respondents.

On PETITION FOR Writ OF CERTIORARI TO THE

UNITED StaTES COURT OF APPEALS FOR THE NINTH CIRCUIT

Amici CurRi4E Brief Or THE ELECTRONIC FRONTIER FOUNDATION,

AMERICAN ASSOCIATION OF LAW LIBRARIES, AMERICAN LIBRARY

ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, CENTER FoR

Democracy AND TECHNOLOGY, NATIONAL SECURITY ARCHIVE,

PROJECT On GOVERNMENT SecrRECY OF THE FEDERATION OF

AMERICAN SCIENTISTS, AND SPECIAL LIBRARIES ASSOCIATION IN

Support Or THE PETITION For A Writ OF CERTIORARI

Davip L. SOBEL Cinpy COHN

Counsel of Record Lee TIEN

Marcia HOFMANN ELECTRONIC FRONTIER FOUNDATION

ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street

1875 Connecticut Avenue, NW San Francisco, CA 94110

Suite 650 (415) 436-9333

Washington, DC 20009

(202) 797-9009

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF THE AMICI CORIAL. cisicsiciorsecsssviecsetescvassescesise J

SUMMARY OF THE ARGUMENT ...............cccsscsssssseccsseeseesees 3

PET UDRIICS -<s00ccesicccsioscintptuntsebibialareamatapme vesgonces amma tenuate 4

A. The Laws of the United States Do Not Permit the

Executive Branch to Govern Public Conduct Through

Secret Laws; Thus, This Court Must Carefully Review

the Executive Branch’s Attempts to Hide the Content

of its Identification Requirement. ...........:ccsescesccceeseeeeeeeees 5

1. The FOIA’s Legislative History Shows That

Congress Did Not Intend for Agencies to Create

and Govern the Public With Secret Laws................... 6

2. FOIA’s Affirmative Disclosure Requirements and

Judicial Precedent Recognize Congress’

Intention Not to Permit the Shielding of Secret

Low FOCI CG PIG is siicrrnceccdctonccerecnecssigineitniaaioniains 8

B. This Court Should Ensure that TSA Does Not Abuse Its

Authority to Designate “Sensitive Security

Information” to Impose Secret Laws Upon the Public... 12

1. TSA’s Authority to Conceal Information as SSI is

Overly Broad and Invites Capricious

Application, Which Congress Has Recently

OOD s ieisciithetescisciateseedecnip cite nediia 13

2. TSA Has Used the SSI Designation to Avoid

Releasing Harmless or Already Public

ROME ort MIE MS ALT EM Ee Ny AN BND P 16

3. The SSI Designation May Conceal Security

Flaws or Illegal Activity, Undermine the Justice

~ System, and Create Confusion. ..............ccccccesseceeeseees 17

ii

SII Sibi ics da lise incbiivevonesetbcinsnastiees inenipvdiunrseniuesvnoasiteannedes 19

iii

TABLE OF AUTHORITIES

Cases

U.S. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976)......6, 9

Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854

12 tee, SERRE kei ioe A SRE Pea Si bie Pade es Bw < Sepia eh 1]

Cox v. U.S. Dep't of Justice, 601 F.2d 1 (D.C. Cir. 1976)....... 10

Crooker v. BATF, 670 F.2d 1051 (D.C. Cir. 1981)............. 9,10

U.S. Dep't of Justice v. Reporters Comm. for Freedom of the

PE ee Sie FO aE wisi icivcincniitchiniadacecbuccecnncicaniens 6,9

Electronic Privacy Information Center v. U.S. Dep't of

Homeland Security, 384 F. Supp. 2d 100 (D.D.C. 2005)..... 16

EA BO, GI By TRIG a aici vesccsvibicndatienccoseceen 5, 10

Gordon v. FBI, 390 F. Supp. 2d 897 (N.D. Cal. 2004)............ 16

Hardy v. BATF, 631 F.2d 653 (9th Cir. 1980).......0..... eee 10

Jordan v. U.S.Dep’t of Justice, 591 F.2d 753 (D.C. Cir. 1978)

EERE LE CR SAS PA a Ta REE SOE MA DERI IT ISIE MN Me LASER POMBO 8

Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157

ie” RSE Reed ee AN SIGE Ay ee DS RRS NEC OIE TLAURT AS Bite a 12

Nat’! Treasury Employees Union v. U.S. Customs Serv., 602 F.

BN EE trees FO resect cick Socivtsrascndenbcnes Hectectaidcereninns 10

National Labor Relations Board v. Sears, Roebuck & Co., 421

RE. SE RO sisi cciacacigentacs ncaa abciegemhaauaiateiesmancnics 9

Renegotiation Bd. v. Bannercraft Clothing Co. Inc., 415 U.S. 1

RW POUE sich vitossild sciitsesichacicanccettetectiaadla ooaconpcinienatdseticae: ~kaeioeiiniilid 6

iV

Schwartz v. IRS, 511 F.2d 1303 (D.C. Cir. 1975) .........ceeeeee ll

Sterling Drug Inc. v. FTC, 450 F.2d 698 (D.C. Cir. 1971)...... 10

Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997)........... 10, 11

Wiesenfelder v. U.S. Dep't of Education, 959 F. Supp. 532

Se aie HP FD sicenddandsscigasicebimiteseasihas ohctona biphobia eithaaehtiiiaceiedina 10

Wolfe v. U.S. Dep’t of Health and Human Servs., 839 F.2d 768

OR Miak Cals BM cei aieeavicssssnevasnsninahsscbinpbciAcinnadeeniycnensacauiihs 10

Statutes and Regulations

Pe tee eS Ce Fi vice cicctenscieasdecsinnsindvochcnoiadnaiuess 14

CF FOG Fy ARTO secs cprtienvdacsevesscssebeciccimenoscefeniineia 16

gh BASES 2 | SMG UACN mE raNnOnCR wt aeell ope ARENED MEER oe 12, 15, 16

ales SF PO iscescdacdacectccincetaiba an eniaaoiaiaaicoamotte passim

Pe. Ts: NO. 1G7=Z9G-1 56 See ZOE onsets csccsscbansencbnredacensesoss 15

Pub. L. No. 107-71 § 101(e)(3), 115 Stat. 597 (2002) ............. 15

Pub. L. No. 93-366 § 316, 88 Stat. 409 (1974) oe 14

Other Authorities

Building on the Information Sharing Environment: Addressing

Challenges of Implementation: Hearing of House Comm. on

Homeland Security Subcomm. on Intelligence, Information

Sharing, and Terrorism Risk Assessment, 109th Cong. mae?

POSER HSE HEHEHE HEE HEHE EHS HEEEEEEEES ESE SE ESHER EHTS EHET ESTEE ETH EHTS EE EH ESE HTESESEEEES TEES

Congressional Research Service, RL31826, Protecting Our

Perimeter: “Border Searches” Under the Fourth Amendment

Fi oe Tay TRING Sie RC EEO SAIS Sars Sire RPE RITE Oe 9

Vv

Congressional Research Service, RL32664, Interstate Travel:

Constitutional Challenges to the Identification Requirement

and Other Transportation Security Regulations (2004)........ 14

Meredith Fuchs, Judging Secrets: The Role Courts Should Play

in Preventing Unnecessary Secrecy, 58 ADMIN. L. REV. 131

CRE aiissiccbsiind rads pilicatouseapepcuieiodsesGariniincee 5,19

H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966)..........cseeeeees 8

OpenTheGovernment.org, Secrecy Report Card 2006 (2006)..

RS21727, Sensitive Security Information (SSI) and

Transportation Security: Background and Controversies

NN ide kcisah baka isessnicnsid tv ii cleans eieaduasaalanerabechiness 16, 18, 19

S. Rep. No. 1219, 88th Cong., 2d Sess. (1964) oo... eee 7

S. Rep. No. 813, 89th Cong., Ist Sess. (1965) ..... eee 6,7

The National Security Archive, Pseudo-Secrets: A Freedom of

Information Audit of the U.S. Government's Policies on

Sensitive Unclassified Information (March 2006)............... 14

INTEREST OF THE AMICI CURIAE'

Amici are a group of non-profit organizations that oppose the

Executive branch’s regulation of public conduct without

appropriate checks or transparency. We believe that a thriving

democratic society is inconsistent with governance of the public

through secret law.

The Electronic Frontier Foundation (“EFF”) is a non-profit,

public interest organization dedicated to protecting civil

liberties and free expression in the digital world. Founded in

1990 and based in San Francisco, California, EFF has more than

12,000 members and publishes a comprehensive archive of

digital civil liberties information at one of the most linked-to

websites in the world, http://www.eff.org.

The American Association of Law Libraries (“AALL”) is a

nonprofit educational organization with over 5000 members

nationwide. AALL’s mission is to promote and enhance the

value of law libraries, to foster law librarianship and to provide

leadership and advocacy in the field of legal information and

information policy.

The American Library Association (“ALA”) is a nonprofit

educational organization of over 66,000 librarians, library

educators, information specialists, library trustees, and friends

of libraries representing public, school, academic, state, and

specialized libraries. ALA is dedicated to the improvement of

library and information services and the public’s right to a free

and open information society.

The Association of Research Libraries (““ARL”) is a nonprofit

association of 123 research libraries in North America. ARL’s

' Neither party has participated in the preparation or financing of this

brief. In the interest of fullest disclosure, amicus EFF notes that Petitioner

Gilmore was a co-founder of the organization, serves on EFF’s board of

directors and, like many private individuals interested in this field, makes

general financial contributions to the operations of EFF.

2

members include university libraries, public libraries,

government and national libraries. Its mission is to shape and

influence forces affecting the future of research libraries in the

process of scholarly communication. ARL programs and

services promote equitable access to and effective uses of

recorded knowledge in support of teaching, research,

scholarship and community service.

The Center for Democracy and Technology (“CDT”) is a non-

profit public interest and Internet policy organization. CDT

represents the public's interest in an open, decentralized Internet

reflecting constitutional and democratic values of free

expression, privacy, and individual liberty. CDT’s staff has

conducted extensive policy research, published academic papers

and analyses, and testified before Congress about the impact of

national security concerns on civil liberties, as well as on the

need for an open and transparent government.

The National Security Archive (the “Archive”) is an

independent, non-partisan, non-governmental, non-profit

research institute located at the George Washington University,

which collects and publishes declassified documents concerning

U.S. foreign policy.

The Project on Government Secrecy of the Federation of

American Scientists promotes public access to government

information through research, advocacy, investigative reporting,

and publication of government records.

The Special Libraries Association (“SLA”) is a nonprofit

global organization for innovative information professionals

and their strategic partners. SLA serves more than 11,000

members in 75 countries in the information profession,

including corporate, academic, and government information

specialists. SLA promotes and strengthens its members through

learning, advocacy, and networking initiatives. For more

information, visit us on the Web at http://www.sla.org.

3

SUMMARY OF THE ARGUMENT

This case squarely presents one of the most critical civil

liberties questions of the post-9/11 era: whether a federal

agency may set standards for the conduct of members of the

public through rules and requirements the public is not

permitted to see. Specifically, this case concerns a mandate

imposed by the Transportation Security Agency (“TSA”) that

apparently requires members of the public to present

identification or submit to additional security screening to board

a domestic airline flight (“the identification requirement”).

A prohibition against secret law is reflected throughout the

constitutional and statutory law of this nation. Congress created

a mechanism to ensure that agencies would not be permitted to

impose secret law when it passed the Freedom of Information

Act (“FOIA”), a law that grants the public the right to obtain all

government agency records with few exceptions. This Court

and others have repeatedly affirmed that the FOIA protects the

fundamental principle that the public is entitled to know the

laws under which it is governed and the standards of conduct to

which it will be held. While the FOIA does allow the

government to withhold materials that are specifically exempted

from disclosure under another statute, and Congress has given

the TSA authority to withhold certain transportation security

information under this provision, the identification requirement

imposes a behavioral mandate upon the public, and is therefore

not the type of information Congress intended for agencies to

hie from public scrutiny.

TSA has refused to allow the public to see the actual

provisions of the identification requirement, claiming that they

constitute unclassified “sensitive security information” (“SSI”).

The Court should grant certiorari and carefully review the

government’s SSI designation because TSA’s actions are a

serious encroachment upon constitutional and _ statutory

protections against secret law. The dangers posed by this

encroachment are foreshadowed by the overly broad manner

4

that SSI regulations promulgated by TSA have been applied in

the past. If the Court does not review this case and stem the

promulgation and enforcement of secret law by TSA, then all

executive branch agencies with responsibility for security

matters will feel emboldened to legislate in private.

Furthermore, the overly broad application of SSI may hide

security flaws and illegal activity, frustrate the justice system,

create confusion among the public, and otherwise severely

undermine government accountability.

Aviation security is an important governmental objective, but

should not serve as an excuse not to hold the government

accountable. This Court should grant certiorari and exercise its

authority to review the propriety of TSA’s withholding of the

identification requirement from the public.

ARGUMENT

While Congress has passed laws giving the TSA and other

agencies some Jatitude to withhold information from the public

that might affect transportation security, Congress never

intended to give agencies unfettered discretion to impose

requirements upon the public’s conduct without allowing the

public to review those requirements.

Furthermore, there is significant evidence in the public record

that TSA has used its SSI regulations to inappropriately

withhold excessive amounts of information from the public.

Such secrecy may permit TSA to conceal security weaknesses

and illegal activity, undermine the administration of justice, and

create confusion about what TSA’s regulations require.

For these reasons, it is critical that the Court review TSA’s

application of the SSI regulations to the identification

requirement. Certiorari should be granted, and the Ninth

Circuit’s judgment reversed.

5

A. The Laws of the United States Do Not Permit the

Executive Branch to Govern Public Conduct

Through Secret Laws; Thus, This Court Must

Carefully Review the Executive Branch’s Attempts

to Hide the Content of its identification

Requirement.

Congress has granted TSA the ability to designate certain

types of unclassified information “sensitive security

information” for aviation security purposes. However, the

legislative history and case law of the primary federal open

government law, the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, make clear that Congress never intended to allow

agencies unbridled discretion to keep laws or regulations that

govern the people’s conduct from public review. Although

Congress has granted TSA the ability to designate certain types

of unclassified information “sensitive security information” for

aviation security purposes, Congress did not intend that

authority to override constitutional and statutory prohibitions

against secret law.

“At a fundamental level, secrecy claims must be measured

against our historic and constitutional commitments to

government openness.” Meredith Fuchs, Judging Secrets: The

Role Courts Should Play in Preventing Unnecessary Secrecy,

58 ADMIN. L. REv. 131, 139 (2006). The clearest embodiment

of American transparency principles, the FOIA, is a benchmark

against which the government’s SSI claim in this case should be

examined.

The FOIA creates a judicially enforceable right for

individuals to obtain government agencies records with a few

narrowly drawn exceptions. As explained by this Court, “the

Act is broadly conceived. It seeks to permit access to official

information long shielded unnecessarily from public view and

attempts to create a judicially enforceable right to secure such

information from possibly unwilling official hands.” EPA v.

Mink, 410 U.S. 73, 80 (1973). The law was intended to “pierce

6

the veil of administrative secrecy and open agency action to the

light of public scrutiny.” Rose v. U.S. Dep't of the Air Force,

495 F.2d 261, 263 (2d Cir. 1974). Since its initial passage forty

years ago, the FOIA was amended by Congress to strengthen

the public’s right to access government information in 1974,

1976, 1986 and 1996.

3 The FOIA’s Legislative History Shows That

Congress Did Not Intend for Agencies to

Create and Govern the Public With Secret

Laws.

The FOIA’s legislative history makes clear that Congress did

not intend for requirements on the public’s behavior to be

shrouded in secrecy by agencies. When it passed the FOIA, this

Court has noted, Congress was “principally interested in

opening administrative processes to the scrutiny of the press and

general public,” Renegotiation Bd. v. Bannercraft Clothing Co.

Inc., 415 U.S. 1, 17 (1974) (citation omitted), and “enabl{ing]

the public to have sufficient information in order to be able . . .

to make intelligent, informed choices with respect to the nature,

scope, and procedure of federal government activities.” Jd. As

this Court has recognized, Congress sought to “eliminate []

secret law.” U.S. Dep't of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 796 n.20 (1989) (quoting

Frank H. Easterbrook, Privacy and the Optimal Extent of

Disclosure Under the Freedom of Information Act, 9 J. LEGAL

STUDIES 775, 777 (1980)).

Prior to the FOIA’s enactment in 1966, the primary public

disclosure statute was section 3 of the Administrative Procedure

Act, which was “of little or no value to the public in gaining

access to records of the Federal Government.” S. Rep. No. 813,

89th Cong., Ist Sess. (1965). It had, in fact, “precisely the

opposite effect: it is cited as statutory authority for the

withholding of virtually any piece of information that an official

or an agency does not wish to disclose.” /d. According to the

Senate Committee on the Judiciary:

j

Under the present section 3, any Government

official can under color of law withhold almost

anything from any citizen under the vague

standards—or, more precisely, lack of

standards—in section 3. It would require almost

no ingenuity for any official to think up a reason

why a piece of information should not be

withheld (1) as a matter of “public interest,” (2)

“for good cause found,” or (3) that the person

making the request is not “properly and directly

concerned.”

S. Rep. No. 1219, 88th Cong., 2d Sess. (1964).

The FOIA was passed specifically to replace this weak and

ineffective disclosure law. In their conference reports, the

judiciary committees of both the Senate and House of

Representatives exjressed a clear intent to ensure the law’s

narrow exceptions to disclosure would not create secret

regulations on public conduct. The Senate committee explained

that the law’s purpose was to

establish a general philosophy of full agency

disclosure unless information is exempted under.

clearly delineated statutory language and to

provide a court procedure by which citizens and

the press may obtain information wrongly

withheld. . . . It is essential that agency

personnel, and the courts as well, be given

definitive guidelines in setting information

policies. Standards such as “for good cause” are

certainly not sufficient.

S. Rep. No. 813, 89th Cong., Ist Sess. (1965). The House

committee provided further context for the impetus to revise the

federal disclosure law:

8

As the Federal Government has extended its

activities to solve the Nation’s expanding

problems—and particularly in the 20 years since

the Administrative Procedure Act was

established—the bureaucracy has developed its

own form of case law. This law is embodied in

thousands of orders, opinions, statements, and

instructions issued by hundreds of agencies.

This is the material which would be made

available under subsection (b) of S. 1160 [the

bill that eventually became the FOIA].

H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966).

Thus, the FOIA’s legislative history clearly reflects the intent

of Congress to prevent the creation of secret, unreviewable

agency regulations on public conduct.

2. FOIA’s Affirmative Disclosure Requirements

and Judicial Precedent Recognize Congress’

Intention Not to Permit the Shielding of

Secret Law From the Public.

In the four decades since the FOIA’s enactment, this Court

and others have repeatedly recognized that a fundamental

purpose of the statute is to prohibit agencies from maintaining

secret requirements with which the public must comply. Put

bluntly, “[o]ne of the principal purposes of the Freedom of

Information Act is to eliminate ‘secret law.’” Jordan v. U.S.

Dep't of Justice, 591 F.2d 753, 781 (D.C. Cir. 1978) (en banc)

(Bazelon, J., concurring).

As an initial matter, the judiciary has noted that the

affirmative obligations the FOIA places on agencies weighs

against secret law. The Act requires agencies to index “final

opinions,” “statements of policy and interpretations which have

been adopted by the agency,” and “instructions to staff that

affect a member of the public.” 5 U.S.C. § 552(a)(2). As this

Court has found, these requirements demonstrate “a strong

9

congressional aversion to secret (agency) law,” as well as “an

affirmative congressional purpose to icquire disclosure of

documents which has the force and effect of law.” NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (quoting

Kenneth Culp Davis, The Information Act: A Preliminary

Analysis, 34 U. Cui. L. REV. 761, 797 (1967) and H.R. Rep. No.

1497) (internal citations and quotation marks omitted). See also

Reporters Comm. For Freedom of the Press, 489 U.S. at 772

n.20 (The FOIA’s “indexing and reading-room rules indicate

the primary objective is the elimination of ‘secret law.’”)

(quoting Easterbrook, Privacy, supra, at 777.)

Furthermore, the courts have repeatedly noted Congress’

aversion to secret law in analyses of two of the FOIA’s

exemptions to the law’s broad disclosure requirement:

Exemptions 2 and 5.

Exemption 2 of the FOIA exempts from disclosure agency

records that are “related solely to the internal personnel rules

and practices of an agency.” 5 U.S.C. § 552a(b)(2). This Court

has established that Exemption 2 may be used to withhold intra-

agency records in which the public could not be expected to

have any significant interest, U.S. Dep’t of the Air Force v.

Rose, 425 U.S. 352, 369-70 (1976), as well as parts of law

enforcement manuals where disclosure could be expected to

risk the circumvention of laws or agency regulations. Crooker v.

BATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981).

? It is worth underscoring that TSA’s identification requirement has not

been imposed for criminal investigation purposes. Rather, “the

suspicionless screening of passengers boarding airplanes is based on...

the administrative search doctrine. Under this exception [to full Fourth

Amendment requirements], searches are conducted as part of a regulatory

scheme in furtherance of an administrative purpose, rather than as part of

a criminal investigation to secure evidence, but must still be reasonable

under the Fourth Amendment.” Congressional Research Service,

RL31826, Protecting Our Perimeter: “Border Searches” Under the

Fourth Amendment 7 (Aug. 15, 2006) (citing United States v. Davis, 482

F.2d 893 (9th Cir. 1973) (emphases in original).

10

The courts have declared again and again, however, that

Exemption 2 may not be used to withhold “secret law” from the

public. “All administrative materials, even if included in staff

manuals that otherwise concern law enforcement, must be

disclosed unless they come under one of the other exemptions

of the act. Such materials contain the ‘secret law’ which was

the primary target of the act’s broad disclosure provisions.”

Hardy v. BATF, 631 F.2d 653, 657 (9th Cir. 1980) (citing Cox

v. U.S. Dep't of Justice, 601 F.2d 1, 5 (D.C. Cir. 1976)).

Information cannot be properly withheld under Exemption 2

when it “purport[s] to regulate activities among members of the

public [or] set[s] standards to be followed by agency personnel

in deciding whether to proceed against or to take action

affecting members of the public.” Cox, 601 F.2d at 5; see also

Crooker, 670 F.2d at 1075; Wiesenfelder v. U.S. Dep't of

Education, 959 F. Supp. 532, 535 (D.D.C. 1997); Nat’!

Treasury Employees Union v. U.S. Customs Serv., 602 F. Supp.

469, 474 (D.D.C. 1984).

Likewise, a strong preference against secret law has been read

by courts into Exemption 5 of the FOIA, which protects “inter-

agency or intra-agency memorandums or letters which would

not be available to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552a(b)(5). This exemption

includes a deliberative process privilege, which protects from

public disclosure “materials which are both predecisional and

deliberative.” Mink, 410 U.S. at 88; Tax Analysts v. IRS, 117

F.3d 607, 616 (D.C. Cir. 1997); Wolfe v. U.S. Dep’t of Health

and Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en

banc). Just a few years after the FOIA was first passed, the D.C.

Circuit unequivocally declared that the deliberative process

privilege could not be asserted to protect materials that directly

govern the public’s conduct: “These are not the ideas and

theories which go into the making of the law, they are the law

itself, and as such should be made available to the public.”

Sterling Drug Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971).

11

Courts have continued to apply this fundamental principle in

subsequent cases. As the D.C. Circuit has stressed:

[A] major limitation on the exemption for

internal memoranda is that they are not

protected, even though they are deliberative

rather than factual, if they represent policies,

statements or interpretations of law that the

agency has actually adopted. The purpose of

this limitation is to prevent bodies of “secret

law” from being built up and applied by

government agencies. The policy basis for this

exemption is derived from a perceived need not

to frustrate the explicit commands of the statute

that “final opinions ... and .. . orders,”

“statements of policy” and “instructions to staff”

be accessible to the public.

Schwartz v. IRS, 511 F.2d 1303, 1305-06 (D.C. Cir. 1975)

(citing Sterling Drug, 450 F.2d at 698, and 5 U.S.C. §

552a(a)(1) & (2)). Over the decades, the prohibition against

“secret law” has become well established in FOIA case law.

A strong theme of our [deliberative process]

opinions has been that an agency will not be

permitted to develop a body of ‘secret law,’

used by it in the discharge of its regulatory

duties and in its dealings with the public, but

hidden behind a veil of privilege because it is

not designated as “formal,” “binding” or “final.”

Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854

(D.C. Cir. 1980); Tax Analysts, 117 F.3d at 616.

The FOIA does contain an exemption for materials

“specifically exempted from disclosure by statute,” 5 U.S.C. §

552a(b)(3), and Congress has permitted TSA to shield certain

“security activities” from disclosure under the FOIA, 49 U.S.C.

12

§ 114(s). However, agency regulations on public behavior are

not the type of information Congress meant to preclude from

public scrutiny, as the legislative history and judicial

interpretation of the FOIA show. The Court must not permit this

exemption to swallow a central purpose of the statute: to

provide an oversight mechanism for the governmei:t’s actions.

As this Court recently observed, FOIA is “a means for citizens

to know ‘what the Government is up to.” This phrase should not

be dismissed as a convenient formalism. /t defines a structural

necessity in a real democracy.” Nat'l Archives & Records

Admin. v. Favish, 541 U.S. 157, 171-172 (2004) (citations

omitted) (emphasis added). ;

Thus, the Court should grant certiorari to review the propriety

of the government’s SSI designation in this case.

B. This Court Should Ensure that TSA Does Not Abuse

Its Authority to Designate “Sensitive Security

Information” to Impose Secret Laws Upon the

Public.

This Court should examine whether the government’s

identification requirement is properly designated as SSI and

thus rightfully shielded from public review. While Congress has

given TSA discretion to designate SSI, the agency has

promulgated regulations in recent years suggesting that it has

unfettered discretion to keep virtually anything from the public

merely by labeling it SSI. Courts have determined that this

authority has been applied in an overiy broad manner, and the

Congressional Research Service (“CRS”) has reported that TSA

has used the SSI designation in controversial ways. This Court

must not permit TSA to use the SSI label to impose secret laws

upon the pubic. If the Court permits this sort of administrative

lawmaking, other agencies will follow TSA’s lead and create

secret laws to govern the public’s conduct. For this reason, it is

critical that the Court exercise its authority here to review the

propriety of the agency’s SSI designation as applied to the

identification requirement.

13

1, TSA’s Authority to Conceal Information as

SSI is Overly Broad and Invites Capricious

Application, Which Congress Has Recently

Recognized.

In recent years, the government has developed new policies to

keep certain types of unclassified information from the public.

“Government secrecy continues to expand across a broad array

of agencies and actions, including military procurement, new

private inventions, and the scientific and technical advice that

the government receives.” OpenTheGovernment.org, Secrecy

Report Card 2006 at 2 (2006). According to an official within

the Office of the Director of National Intelligence, more than 60

unique designations are used throughout the government to

label information sensitive but unclassified, thus keeping 1 from

public review. Building on the Information Sharing

Environment: Addressing Challenges of implementation:

Hearing of House Comm. on Homeland Security Subcomm. on

Intelligence, Information Sharing, and Terrorism Risk

Assessment, 109th Cong. (2006) (testimony of Thomas E.

McNamara, Program Manager, Office of the Director of

National Intelligence).

Troublingly, there is little institutional oversight of

administrative use of these designations:

The picture that emerges from the diverse

{sensitive but unclassified] policies . . . shows

little likelihood that Congress or the public will

be able to assess whether these policies are

being used effectively to safeguard the security

of the American public, or abused for

administrative convenience or for improper

secrecy. Unlike classified records or ordinary

agency recurds subject to FOIA, there is no

monitoring on the use or impact of protective

sensitive unclassified information markings.

is

The National Security Archive, Pseudo-Secrets: A Freedom of

Information Audit of the U.S. Government's Policies on

Sensitive Unclassified Information i (March 2006).

Because administrative agencies apply these secrecy labels

with little or no accountability, it is critical that this Court

ensure these designations are not used to undermine the

fundamental principles of the FOIA and impose secret law upon

the public.

The concept of SSI originated with the Air Transport Security

Act of 1974, which authorized the Federal Aviation

Administration (“FAA”) to withhold certain information from

the public. Pub. L. No. 93-366 § 316, 88 Stat. 409 (1974). The

narrow language of this law permitted the FAA to:

Prohibit disclosure of any information obtained

or developed in the conduct of research and

development activities . . . if in the opinion of

the Administrator the disclosure of such

information—{A) would’ constitute an

unwarranted invasion of personal privacy .. .

(B) would reveal trade secrets or privileged or

confidential commercial or financial

information obtained by any person; or (C)

would be detrimental to the safety of persons

traveling in air transportation.

Id. (emphasis added). The FAA _ implemented _ these

requirements by promulgating regulations that, inter alia,

established the SSI designation, which in 1997 was defined as

“records and information . . . obtained or developed during

security activities or research and development activities.” 14

C.F.R. § 191.1 (1997); Congressional Research Service,

RL32664, Interstate Travel: Constitutional Challenges to the

Identification Requirement and Other Transportation Security

Regulations 2 (2004). The SSI designation applied at that time

15

to air transportation entities and personnel. Congressional

Research Service, /nterstate Travel at 2.

In 2002, the Aviation and Transportation Security Act created

TSA within the Department of Transportation (“DOT”), and

transferred authority for designating SSI, among other

responsibilities, to the TSA. Pub. L. No. 107-71 § 101(e)(3),

115 Stat. 597, 603 (2002). The law also broadened the

definition of SSI to include information about other forms of

transportation. /d. Later that year, the Homeland Security Act of

2002 transferred TSA from the DOT to the Department of

Homeland Security (“DHS”). Pub. L. No. 107-296-116 Stat.

2312. This law delegated to TSA authority to:

Prescribe regulations prohibiting the disclosure

of information obtained or developed in

carrying out security under authority of the

Aviation and Transportation Security Act

{Public Law 107-71) or under chapter 449 of

this title if the Under Secretary decides that

disclosing the information would—{A) be an

unwarranted invasion of personal privacy; (B)

reveal a trade secret or privileged or confidential

commercial or financial information; or (C) be

detrimental to the security of transportation.

Id. at § 1601(b) (codified as amended at 49 U.S.C. § 114(s)

(2004)) (emphasis added).’

In May 2004, TSA and DHS published a Federal Register

notice listing sixteen distinct types of information that may be

labeled SSI under the Homeland Security Act, including such

broad categories as material that might “be detrimental to

transportation safety”; “Security Directives,” along with “[a]ny

> A similar statutory provision applying to DHS's Secretary of

Transportation authorizes nondisclosure of information that is “obtained

or developed in ensuring [transportation] security.” 49 U.S.C.

§ 40119(b)(1).

16

comments, instructions, and implementing guidance pertaining

thereto”; and the catch-all “any information not otherwise

described in this section that TSA determines is SSI under 49

U.S.C. 114(s) or that the Secretary of [the DOT] determines is

SSI under 49 U.S.C. 40119.” 69 Fed. Reg. 28066, 28082-83

(codified at 49 C.F.R. § 1520.5).

2. TSA Has Used the SSI Designation to Avoid

Releasing Harmless or Already Public

Information.

According to a report by CRS, the SSI regulations at issue

here “are intended to reduce the risk of vital security

information reaching the wrong hands and resulting in another

terrorist attack.” RS21727, Sensitive Security Information (SSI)

and Transportation Security: Background and Controversies 3

(2004). Courts have found, however, that TSA applied these

regulations in an overbroad manner to avoid releasing

innocuous or already public information.

In 2004, Judge Charles R. Breyer of the Northern District of

California performed an in camera review of material withheld

by the government when a FOIA requester challenged, inter

alia, TSA’s designation of information about the agency’s “no-

fly” watch list as related to a security directive under its SSI

regulations. Gordon v. FBI, 390 F. Supp. 2d 897, 899-900 (N.D.

Cal. 2004). Judge Breyer determined that TSA did not meet its

burden of showing that certain information was properly

withheld “by simply reciting” that it was SSI. /d. In fact, the

court found, TSA relied upon “frivolous claims of exemption”

to withhold “innocuous information” that was “common sense

and widely known.” /d.

Since then, the district court for the District of Columbia has

similarly found an unsupported SSI designation legally

inadequate to support withholding of information under the

FOIA. See Electronic Privacy Information Center v. Dep't of

Homeland Security, 384 F. Supp. 2d 100, 110 (D.D.C. 2005)

17

(rejecting TSA’s mere statement that a document constitutes

SSI, and finding that the government must “provide a more

adequate description in order to justify the application of

[Exemption 3] to the withheld material.”’).

In addition to these judicial determinations, at least one FOIA

request shows that TSA made arbitrary withholdings of

information under the SSI regulations. In this instance, TSA

refused to release information labeled SSI in a response to a

FOIA request from the National Security Archive, despite the

fact that the information had been disclosed to the public in the

final report of the National Commission on Terrorist Attacks

Upon the United States (“9/11 Commission”). Press Release,

National Security Archive, Government Censors Aviation

Warnings Leading Up to 9/11 (Nov. 14, 2004).* Specifically,

TSA used the SSI designation to keep secret the titles and texts

of five aviation warnings, also known as Information Circulars,

that had been transmitted to airlines shortly before the attacks.

Id. However, the titles and information in the warnings had

already been published in the 9/11 Commission report, which

was at one time the bestselling book in the United States. /d.

When the National Security Archive appealed the withholdings,

TSA finally released the information. National Press Release,

Security Archive, 9/11 Commission Staff Report on FAA

Failings Published on Web (Feb. 10, 2005).°

3. The SSI Designation May Conceal Security

Flaws or Illegal Activity, Undermine the

Justice System, and Create Confusion.

In addition to these documented uses of the SSI regulations to

withhold information that should have rightfully been released

to the public, the CRS has reported at length that the

designation has “raised a number of concerns about the

management of [SSI] information and the accountability of

* http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBBI37/index.htm.

5 http://www.gwu.edu/~nsarchiv/NSA EBB/NSAEBB148/index.htm.

18

governmental agencies.” CRS, Sensitive Security Information at

3

In one instance identified by the CRS, the SSI label was

controversially applied to conceal information related to an

incident in which a baggage screener permitted a passenger to

clear security after a test indicated his luggage might contain an

explosive. /d. The lack of public information about this incident

made it impossible to understand how this security breach

occurred or might be avoided in the future, and ultimately

undermines public faith in the reliability of airport security

measures.

The government has also applied the SSI designation in a

manner that undermined the criminal justice system. The CRS

reported that TSA’s assertion of the SSI label may have

negatively impacted the criminal prosecution of a baggage

screener who allegedly stole items from passenger baggage. /d.

at 3-4. The U.S. attorney prosecuting the case ultimately

dropped the charges when a court ruled that the baggage

screener’s attorneys would be permitted to cross-examine the

government’s witnesses, which the government determined

“could raise the possibility of disclosing SSI about TSA’s

security and training procedures.” Jd. at 4. This incident may

have discouraged future prosecutions against TSA employees

accused of criminal activity that could potentially concern SSI.

The government’s SSI claims have made it impossible for

plaintiffs to pursue recourse in the civil context, as well, as this

case demonstrates). In civil cases, as in the criminal prosecution

discussed supra, concerns about disclosing SSI undermine the

ability of the courts to render justice.

According to the CRS, another divisive use of SSI involved

the execution of security agreements between TSA, airports,

and local law enforcement that prohibited police from publicly

commenting, without the approval of TSA officials, on

incidents occurring on airport property that involved SSI. /d. at

5. A police chief in lowa expressed concern that these

19

agreements might bar the police from reporting arrests for

minor incidents at airports or even presenting testimony in court

without the prior approval of TSA. /d. (citing Tom Alex,

“Secrecy in Airport Security Contract Criticized,” Des Moines

Register, Sept. 27, 2003, at 1A). Upon the request of Iowa’s

senators, TSA explained that the agreements were not intended

to impose a “gag order” on police, and also clarified that law

enforcement officers did not require TSA approval to testify in

court about matters not involving sensitive information. CRS,

Sensitive Security Information at 5-6. TSA also ultimately

agreed to make copies of the agreement publicly available, with

redactions for SSI. /d. at 6. This incident illustrates, however,

that the SSI designation can easily create confusion about the

measures those with a “need to know” are expected to take to

conceal SSI from the public. Such confusion may lead officials

to exercise an abundance of caution, and keep more information

secret than necessary.

This Court should not allow TSA to use the SSI designation

to govern the public’s conduct through secret laws. As one open

government authority has noted, there are “real costs associated

with keeping unnecessary secrets.” Fuchs, Judging Secrets, 58

ADMIN. L. REV. at 136. These costs include “undermining the

legitimacy of government actions, reducing accountability,

hindering critical technological and scientific progress,

interfering with the efficiency of the marketplace, and breeding

paranoia.” /d. at 136-137. It is clear that the SSI designation has

raised many of these concerns in the context of the

identification requirement. For this reason, it is critical that the

Court carefully examine TSA’s application of the SSI label here

to ensure that it has not been used to impose secret law upon the

public.

CONCLUSION

For the forgoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

David L. Sobel

Counsel of Record

Marcia Hofmann

ELECTRONIC FRONTIER

FOUNDATION

1875 Connecticut Ave. NW

Suite 650

Washington, DC 20009

(202) 797-9009

November 2006

Cindy Cohn

Lee Tien

ELECTRONIC FRONTIER

FOUNDATION

454 Shotwell St.

San Francisco, CA 94110

(415) 436-9333

Counsel for Amici