# Amicus Curiae Brief — Gilmore v. Gonzales (No. 06-211) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1310%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 ## Text 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 - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1310%3A4. Public record. Not legal advice.