JOHN PERRY BARLOW appears in court today to contest the grounds of his detention on a Homeland Security screening of his luggage. He writes a compelling first-person story of the events related to boarding Delta Flight 310 in San Francisco one year ago today and ends up in court fighting the manner in which airport security conducts its business. Through his long essay and throughout the thoughtful comments left behind by thousands of readers, all travelers must know that anyone could be stitched up and given a taste of the system if the US continues granting Homeland Security the permission to make the roads straighter and narrower. The troubling issue is the paople behind those kinds of roads works don't always represent the best interest of those who need to travel.
The US governmet has invoked its right to proclaim items it designates as Special Security Information and in doing this with the case of People vs Barlow, we don't have a court hearing, just a suppression of evidence. Seth David Schoen explains.
The hearing started off with a discussion of what the hearing would be about. The judge wanted to know if the parties were prepared to argue about the substance of the actual motion to suppress (whether the airport search was illegal or not), or whether they were still waiting for other threshold issues. At this stage, we heard a lot of discussion about the presence of an attorney for the Federal government, who was there to try to make sure that nobody said anything in court about how aviation security procedures actually work. The Federal government had actually previously tried to intervene in the case to persuade the judge not to allow evidence about screening procedures to be obtained by Barlow's attorney -- much less introduced. The judge briefly discussed this question (he had only seen a brief notation about it in the file, and hadn't actually heard arguments about it) and said that he was prepared to hear the substantive argument, and to allow the Federal government lawyer to speak up if she thought there was a problem. This turned out to be a problem for Barlow, in my opinion, but the parties agreed to go ahead under these conditions.
Long before the hearing, Barlow's attorney had sent various subpoenas to everyone involved with Barlow's arrest -- including the screener who searched his bag and the police officer who arrested him, and their employers. Both of those people would end up being called as witnesses on Wednesday, but the court was told that they had generally all refused to respond to most of the subpoenas on the grounds that information about how screening in airport works is secret property of the Federal government. They therefore said that Barlow had to ask the Federal government if he wanted to know any of that information. In principle, Barlow's attorney could have fought this; it's hard to say that this judge would have been enthusiastic about ordering that information turned over, but the refusal definitely turned out to have been a sign of things to come.
At the hearing, and in its previous attempt to get the court to forbid Barlow's attorney from obtaining various kinds of evidence, the government made an immense number of references to something called sensitive security information, or SSI. The SSI system is a modern legal oddity which exists in some sense parallel to, but apart from, the system of classified information. SSI is not (necessarily) classified, but it is, in the government's view, subject to restrictions that I think are in many ways more restrictive than the restrictions on classified information. Briefly, the Federal agencies involved with regulating transportation argue that they are entitled by statute and regulation to designate an enormous number of facts in any way related to transportation security as "sensitive security information" and then to prevent anybody within the system from disclosing it under the Freedom of Information Act, or even, remarkably, in response to a subpoena.
In the course of Barlow's hearing, we certainly learned that the government is still sticking to this view: in principle, nobody who works in aviation security is really supposed to say anything much at all about it, even under subpoena.
John Perry Barlow -- "A Taste of the System" with a collection of legal documents.
Seth David Schoen -- "In the Superior Court of California, County of San Mateo"
Mictchell A. Sollenberger -- "Sensitive Security Information and Transportation Security: Background and Controversies" (41 kb PDF)