Monday 28 February 2011

TSA Complaint - A Response from Senator Scott Brown

A couple weeks ago I wrote a letter to several US government officials complaining about the behaviour of the Transportation Security Administration in the wake of the conclusion to the criminal case against Phil Mocek, who was found Not Guilty without presenting a case. Here is that letter. Today I've had a response from my Senator, Scott Brown (R) MA. It is an entirely unsatisfactory response, having completely missed the point of my letter. It is obviously a cut-and-paste answer to any query concerning the TSA, most of which are apparently related to their controversial security procedures. Most likely the Senator never even saw my letter. Here is the response from Senator Brown, or one of his aides.

Dear Matthew,
Thank you for contacting me regarding the recent changes in Transportation Safety Authority (TSA) security procedures. I always value your input on all issues and appreciate hearing from you.
As you may know, on June 24, 2010, Senator Bob Bennett (R-UT) introduced the SAFER AIR Act, which would implement new forms of airport screening technology. S. 3536 would authorize the use of full-body scan machinery to search for weapons, explosives, or other hazardous materials that are otherwise undetectable. While this bill was referred to the Senate Committee on Commerce, Science, and Transportation for consideration during the 111th Congress, the Administration began testing this type of program and has implemented it in select airports nationwide. Many of the concerns voiced about these procedures have surrounded the health implications of millimeter wave technology utilized by these full-body scan machines. The TSA has assured travelers that the non-ionizing radio frequency energy emitted by the machines is safe, and gives off about 100,000 times less energy than that of talking on a cell phone. 
For those concerned about their privacy as a result of images taken by the full-body scanning machines, please know the TSA worked closely with the manufacturers of these machines to make sure that the capabilities to store and send the images were removed prior to installation. Additionally, there are specific prohibitions on the Department of Homeland Security from retaining images used in airport scanning and require that faces of individuals be blurred. You may be interested to know the imaging technology is of lesser quality than that of basic photography and does not present sufficient detail to be used for personal identification. 
In addition to the full-body imaging machines, the TSA has also implemented new pat-down procedures for those air travelers who opt out of using the full-body imaging machines. According to the TSA, these new pat-down procedures are designed to prevent another "Christmas Day" style attack, where Umar Farouk Abdulmutallab attempted to detonate a bomb concealed in his underwear.
The TSA has stated that these new pat-down procedures are part of a multi-layered security protocol that, along with explosive trace detection, the full-body imaging technology, and canine teams, has been implemented to ensure the safety of the traveling public. Most recently, on November 19, 2010, the TSA agreed to let airline pilots skip the security scanning and pat-downs in response to pilot groups voicing concern about the bolstered security. As the TSA continues to receive feedback from the public, other revisions could be made to parts of the new security procedures. 
Our nation's number one goal when it comes to airport security must be the deterrence of terrorist attacks. I certainly understand the concerns of some regarding the new screening procedures, and I agree that these procedures must be as non-intrusive as possible and respectful of Americans’ privacy concerns. But when it comes to our families’ safety, I come down on the side of caution. Protecting American lives is the most important thing to me during these times of potential terrorist threats. As a member of the Senate Committee on Homeland Security and Governmental Affairs, I will continue to be actively engaged in these issues and related policies. As the legislative process moves forward in the 112th Congress, I will be closely monitoring the implementation of these security procedures. 
Again, thank you for sharing your thoughts with me. If you have any additional questions or comments, please feel free to contact me or visit my website at
Scott P. Brown
United States Senator

My letter did not discuss the security procedures in use by the TSA. It sought to highlight an apparently arbitrary use of power by TSA agents with the support of police to interfere with lawful activities of travellers. Mr Mocek was arrested and charged with four separate offences for using a video recorder during a TSA screening in a public area of an airport and for failing to provide identification when ordered to. The jury found him Not Guilty on all charges solely on the weakness of the prosecution's case. Despite this, there is little reason to believe that the TSA will correct this type of behaviour, which I'm led to believe is commonplace. The TSA do not publish their standard operating procedures and have refused a Freedom of Information Act request for the disclosure of these, creating an impossible situation for an air traveller wishing to assert his or her rights. Senator Brown, you've not heard the last of me.

Friday 18 February 2011

Letter: Request for urgent oversight of US Transportation Security Administration

Following is a letter I sent today to several US government officials expressing concern over recent reports of abuses of power by the Transportation Security Administration.

Dear Sirs/Madam,
This letter goes out to my Congressional representative Edward Markey, my state Senators John Kerry and Scott Brown, Secretary of Homeland Security Janet Napolitano, and United States President Barack Obama. I write to you as an expatriated United States citizen who has cause to occasionally travel to the United States through its border controls. I am increasingly concerned about reports of abuses of power by representatives of the Department of Homeland Security (DHS), particularly agents of the Transportation Security Administration (TSA), facing air travelers. The case of Seattle resident Phil Mocek, who faced criminal charges brought by the police department of Albuquerque New Mexico, brings the problem into stark relief. The charges were criminal trespass; resisting, obstructing or refusing to obey a lawful order of an officer; concealing his identity with intent to obstruct, intimidate, hinder or interrupt; and disorderly conduct. The circumstances were such that Mr Mocek was asked by a TSA agent at Albuquerque International Sunport to stop filming during his security screening and refused. Mr Mocek was acquitted by a jury without presenting any evidence as the jury felt there was no case to answer. More information can be found here: Despite the court victory, I understand that Mr Mocek has not been compensated for his legal costs and that there has been no disciplinary action against any of the agents or officers involved, nor any corrective action on the part of the agencies involved. This is deeply troubling.

I understand as well, and please correct me, that the DHS have refused to furnish the text of standard operating procedures of TSA agents requested under the Freedom of Information Act (FOIA), instead only furnishing a list of SOPs some time after the deadline for disclosure under the FOIA had already lapsed. It would appear, rather alarmingly, that there are no laws or published regulations defining what the TSA is permitted to do, and what travelers are required to submit to, in the name of TSA "screening". This is scandalous. How is it possible for a traveler to assert his rights in the face of such arbitrary authority? I would like to draw your attention to Title 49, subtitle VII, Part A, subpart I, chapter 401 of the United States Code which states:
(c) General Safety Considerations.
In carrying out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator of the Federal Aviation Administration shall consider the following matters:
(1) the requirements of national defense and commercial and general aviation.
(2) the public right of freedom of transit through the navigable airspace.

The "public right of freedom of transit through the navigable airspace" is guaranteed by the Airline Deregulation Act of 1978, and the TSA is required by federal law to consider this right when it issues regulations. Freedom of movement is required in order for citizens to exercise their First Amendment right to assemble, and is also guaranteed by Article 12 of the International Covenant on Civil and Political Rights of which the United States is a signatory. It is extremely important that the procedures of TSA officials are known to members of the public so that their limitations are understood and that they can be scrutinized by law makers and the judiciary. I quote the following excerpt from a Wikipedia article about the TSA:
"Private screening did not disappear under the TSA, which allows airports to opt out of federal screening and hire firms to do the job instead. Such firms must still get TSA approval under its Screening Partnership Program (SPP) and follow TSA procedures.[7] Among the U.S. airports with privately operated checkpoints are San Francisco International Airport; Kansas City International Airport; Greater Rochester International Airport; Tupelo Regional Airport; Key West International Airport; and Jackson Hole Airport.[8][9]"

Evidently private companies can apply for TSA approval and be bound the TSA procedures. If private companies have access to these procedures then there can be no defensible refusal by the United States government to disclose these procedures to the public. I am quite frankly shocked and dismayed by this state of affairs. I demand that there be Congressional oversight of this government agency so that the balance of power may be restored. I offer you this outside perspective for your consideration: Your reply is urgently sought. Thank you and kind regards.

Yours sincerely,
Matthew Flaherty

Some further reading:

Saturday 5 February 2011

I put the moon there, Bill

Bill O'Reilly is a real piece of work. His O'Reilly Factor program on the Fox News Channel has over 3 million viewers who love his no nonsense, shoot from the hip, straight talking, tough talking conservative political commentary. He is a forceful character, to be sure. And sure is exactly what he is pretty much all the time. He is a Christian (Roman Catholic in fact). He is sure that there is a God and he can prove it. Now, certainty that there is a God and that Jesus Christ is both the son of God and part of God is one of the basic tenets of Christianity and that's fine. However, the existence of God cannot be proven. Belief in God requires faith, another tenet of Christianity and most other theistic religions. Faith in God the Father, God the Son and God the Holy Spirit is rewarded with a heavenly afterlife. Evidence of God is neither required nor sought. I ought to know, for I was also raised in the Roman Catholic tradition and during mass the priest would often talk about the mystery of faith.

Last week I came across a video of Bill O'Reilly responding to a question from a viewer (I suspect this was not an actual viewer). The viewer was himself responding to a recent episode of the O'Reilly Factor where Bill claimed that the tides prove the existence of God. It seems that Bill has become annoyed at what he perceives as a growing atheist movement in the United States. An organization called the American Atheist Group has taken out advertisements on billboards, such as the one pictured below which sat outside New York's Lincoln tunnel around Christmas last year.

Some have said that the approach of this campaign is inflammatory, and they may be right. David Silverman, the group's president, explained that it was intended to encourage atheists to come out of the closet and declare their belief (or lack thereof). More info here. Whatever the intent, Bill O'Reilly was so incensed by this stunt that he invited Silverman onto his program for a debate. Silverman bravely agreed. During this debate, O'Reilly challenged Silverman to explain how the tides could come in and out with such regularity without the existence of God. This was a golden opportunity for Silverman to blind O'Reilly with science and explain how the moon's orbit affects the tides, something which any eighth grader ought to know. Unfortunately Silverman was so taken aback by this blunt challenge that he was unable to formulate an answer. Well, a viewer from Beverly Hills, Florida named David sent in this question for Bill to answer in his Backstage Conversation webcast. "What do you mean when you refer to the tides when you are asked about the existence of God? Science explains the tides... the moon's gravity pulls on the oceans." You can see this and O'Reilly's possibly predictable answer in the video clip below.

"How did the moon get there? Who put it there?" is the basic idea. Okay, sure. I get that. And I'd be happy to let that go but for the following: Bill O'Reilly labels the viewer a "pin head"; he calls this type of argument "desperate"; and he declares that "it takes more faith to not believe" and to accept that life on earth is just random chance. I had someone on Twitter tell me that last week. This argument really amuses me because it seems to completely misunderstand the whole concept of faith. Faith is belief without proof. God exists for some people because his existence cannot be disproved. It is not possible to prove a negative. This belief without proof is so important to the concept of Christianity that Jesus had this to say to his apostle Thomas, who demanded to feel Jesus' wounds before accepting his resurrection: “Because you have seen Me, have you believed? Blessed are they who did not see, and yet believed.” This is the origin of the phrase Doubting Thomas. Thomas, like me, was a sceptic. Bill O'Reilly has misunderstood the relationship between faith and proof. This does not surprise me since he is no less an idiot than he is an asshole.

I don't believe in God because I have seen no evidence of God's existence. The universe as it is known to exist does not require a creator. The very notion of a creator is problematic. It immediately leads to the question of who created the creator. Nevertheless, I'd be more than happy to accept that notion if there was evidence. If a supernatural being descended from heaven and declared to the world "I am your God. Worship Me and you may join Me in My heavenly kingdom." I would say sure. Yeah, okay. Something similar may have happened a couple millennia ago. There's a book about it. But I find the claims in the book rather fantastic and hard to believe. Science has given us tools to query and understand the universe that were not available to folks in biblical times. There is much that we still do not understand, and we may never understand all that there is to know. But I demand to see proof of God's existence and Christ's divinity. Apparently this means I am going to Hell. I don't believe in Hell so I don't really care. I cannot accept that a creator would bestow this curiosity and intelligence upon our species and expect us not to question his and our very existence. If God created Man in his image, then it is our birthright to examine and attempt to discover what that means.

And now I challenge Bill O'Reilly to prove that in fact I did not put the moon there myself. Bill, I am your God and I put the moon there, okay? Can you prove I didn't? I'll bet you can't. Although the moon has been around much longer than I have, how do you know I'm not a time traveller? Do you demand to see proof? I don't want to show you. You must have faith, Bill. I have powers that you couldn't possibly imagine, William James O'Reilly, Jr. You might say that I can be killed. You might actually kill me, but that's not proof. I might just be testing you. I might just want you to believe that I can be killed. My ways are mysterious, Bill. If Bill O'Reilly can prove that I did not put the moon there then he truly does deserve Heaven. He cannot though, so I cordially invite him to go to Hell.

Friday 4 February 2011

#TwitterJokeTrial - Throwing Stones at the Crown's Case

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I haven't written about the so-called Twitter Joke Trial (some know this as the I Am Spartacus campaign) for some time. There hasn't been much to write about. A High Court appeal is on the horizon and anything happening is behind curtains. Some background in case you need it. This page provides links to more or less everything of interest ever written about this important legal case which threatens online free speech. You will find perhaps the most concise beginners guide to the case here.

What has prompted me to return to this case is a recent news item about the resolution of a similar case involving a conservative councillor named Gareth Compton and a journalist called Yasmin Alibhai-Brown. Read all about that here. Compton was arrested in November 2010 and charged with sending a menacing message, which is an offence under section 127 of the Communications Act 2003. This is the exact same charge under which Paul Chambers was prosecuted for his unfortunate Twitter update that suggested ironically that he would be prepared to blow up an airport. Both were regarded by their authors as ill-conceived and daft attempts at humour. One man has been found guilty, while the other will not be prosecuted. In a statement from the Crown Prosecution Service we learn that "Ms Alibhai-Brown has refused to make any complaint to the police on the matter and the member of the public who initially reported this mater[sic] has also refused to provide the prosecution with a statement." And perhaps crucially, we are told the following:
"A file was then submitted to the reviewing lawyer who has carefully reviewed all of the evidence, as well as the fact that we have no statement of complaint, and they have decided there is insufficient evidence for a realistic prospect of conviction."
So the CPS have concluded that the evidential part of its two part Full Code Test is not satisfied in this case. Part of the reason for this is that there is no statement of complaint. Paul Chambers was very unlucky when he was charged in January 2010. The South Yorkshire CPS had mistakenly believed that a section 127 offence carried a strict liability. Paul was told that as he had admitted to committing the act for which he had been charged (the actus reus), he had no choice but to plead guilty. A strict liability offence does not require proof of the intention to commit the offence (the mens rea). Because of this, the CPS concluded that the evidential test was satisfied as a matter of course. Paul's initial guilty plea ensured that. Had Paul received better legal advice in the beginning then one imagines that the entire case would probably have been dropped then and there. In fact I have it on good authority that the CPS would not have pursued a prosecution under section 127 had they been aware that mens rea was required. A 2006 precedent in the House of Lords, DPP v Collins, determined that there is a burden of proof as to intent in a section 127.1 offence, albeit a rather weak one. The CPS' ignorance of this case law is inexcusable and worthy of strong censure. Gareth Compton can thank Paul Chambers (as well as criminal lawyer and legal blogger Jack-of-Kent) for the Crown's edification on this point of law.

DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character. I consider it extremely unfair to expect a person to be aware of all the various ways in which his electronic message (taken out of context) might be interpreted. This is a particular problem in these new forms of broadcast style communication where we often forget that our messages might be viewed by people who do not know us.                                                                     

But that's a lot of nuance that we don't really need to discuss right now. What's important is that in the case of R v Paul Chambers, the prosecution has maintained that it is not necessary for a message to be received in order for it to constitute an offence. They have used this reasoning to convince two judges and a pair of lay magistrates that the opinions and reactions of all the various people whom we know received and read Paul's message can be disregarded. All the officials (from airport duty manager Sean Duffield, through to the interrogating officer) concluded that the message was not threatening. "Non-credible threat" is the term that was used by the airport security staff, which is the lowest designation that can be given to any potential threat. The interrogating officer wrote in his notes "There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see", a piece of evidence that was only supplied to the defence on appeal. None of Paul's nearly 700 timeline followers thought that there was any cause for concern after having read his tweet. Had any one of them replied to Paul with concerns he would have had the opportunity to apologize and clarify. Had Sean Duffield or the airport or the police contacted Paul informally he could have set the matter to rest. Most imporantly though, there was no complaint of any kind. I defy anyone to produce a complaint about Paul's tweet in any form prior to his arrest. There was none. Duffield was duty bound to report the incident as per the airport's zero tolerance policy. He is not permitted to rely on his common sense judgement. His report cannot be regarded as a complaint.

How does the CPS statement, to the effect that the lack of any complaint makes the prospect of a conviction unlikely, square with its case against Paul Chambers? There is clearly a double standard at work here. Many of us have long suspected that this case was a stitch-up. In other words the Crown, knowing that there was insufficient evidence to prosecute under the original charge arising from the Criminal Law Act 1977, decided that the incident was of a sufficiently serious nature and in the public interest (given its association with airport travel and terrorism) that it warranted a criminal charge. So they set about finding one and struck upon this obscure communications statute, which was then incompetently misconstrued and misapplied. This is my opinion. I am not leveling an accusation at the Crown Prosecution Service, but I have yet to be convinced otherwise. It seems to me now though that the CPS have come to realize that their misapplication of this law calls for the prosecution of every poor fool like Compton who finds himself swept up in their dragnet. Clearly this is a herculean task (as so many of us have liked to point out), and it seems they no longer have the stomach for it. I'd like to think that the CPS will now drop this case before it descends any further into farce. On the other hand, I do want to see a successful appeal to the High Court that will create a more appropriate precedent for the future than DPP v Collins, in which the Lords were unable to see the ramifications of their judgement beyond the narrow scope of nuisance telephone calls. The next couple months should be interesting.

Flayman on LiveJournal (old)