Why can the TSA subpoena bloggers to get at their sources?

The Transportation Security Administration (TSA) issued a direc­tive aimed at insti­tut­ing new, pos­si­bly tem­po­rary, secu­rity mea­sures after the recent attempt against a flight into Detroit. The TSA sent the doc­u­ment to air­lines and air­ports around the world and was not clas­si­fied. Nevertheless, after two blog­gers pub­lished it on Dec. 30, the TSA sought details from them as to how they obtained the doc­u­ment, main­tain­ing that “it was not for pub­lic dis­clo­sure.”

As part of this, the TSA issued sub­poe­nas duces tecum (legal orders requir­ing that doc­u­ments or infor­ma­tion be pro­duced) that sought to com­pel the two blog­gers to reveal their sources. After a pub­lic out­cry, the TSA “can­celed the legal action and apol­o­gized for the strong-arm tac­tics agents used.”

Normally, sub­poe­nas are issued by a court clerk or, more com­monly, by attor­neys work­ing on a case who issue such sub­poe­nas under the author­ity of the super­vis­ing court. The goal is to com­pel wit­nesses to either come to court or pro­duce doc­u­ments or infor­ma­tion to be used in court. Enforcement is not auto­matic, but is instead sought through the court super­vis­ing the case, which has the power to pun­ish some­one who refuses to obey a sub­poena with­out suf­fi­cient cause (as deter­mined by the court).

The sub­poe­nas (or “sub­pe­nas”) in this sit­u­a­tion, how­ever, were not issued or super­vised directly by a court, accord­ing to the text of the doc­u­ment pro­vided by Chris Elliot, one of the tar­geted blog­gers. Instead, they were issued by the TSA under author­ity granted to it by Congress in 49 U.S.C. 46104. (This author­ity is sim­i­lar to that granted to District Attorneys for con­duct­ing inves­ti­ga­tions.) It grants the author­ity to the TSA to:

sub­pena wit­nesses and records related to a mat­ter involved in the hear­ing or inves­ti­ga­tion from any place in the United States to the des­ig­nated place of the hear­ing or investigation

The law does not grant to the TSA the author­ity to enforce sub­poe­nas directly. Instead, the TSA must “peti­tion a court of the United States to enforce the sub­pena.” The court then con­ducts a hear­ing, and may impose penal­ties (includ­ing imprisonment).

One can object to sub­poe­nas on a vari­ety of grounds. (Note that one of those grounds is not the Fourth Amendment, since this is not con­sid­ered a “search” or a “seizure.”) The order may be overly broad or bur­den­some (although the court may sim­ple require you be reim­bursed for your expenses in that case) or may request con­fi­den­tial infor­ma­tion pro­tected by priv­i­lege (attorney-client priv­i­lege, or doctor-patient, for exam­ple). Some states pro­tect a journalist’s right to pro­tect an anony­mous source — but there is no equiv­a­lent fed­eral “shield law.”

This is why the TSA felt it could indeed demand infor­ma­tion from the blog­gers, and why it is very pos­si­ble they could have suc­ceeded in penal­iz­ing the two blog­gers in court if they did not turn over the infor­ma­tion they had. (Of course, there may have been other argu­ments that a lawyer expe­ri­enced in this area could have wielded — so if you are sub­poe­naed and would pre­fer not to com­ply, con­sult an attorney.)

For more on sub­poe­nas gen­er­ally, and how to respond to them, see: Responding to Subpoenas by the Citizen Media Law Project. The Project also has a good guide to pro­tect­ing sources and source mate­r­ial more gen­er­ally. I wrote about this pre­vi­ously in Journalist Shield Laws and Bloggers.