January 1, 2010 | By Cindy Cohn

EFF Helps Blogger Subpoenaed by TSA, TSA Backs Down

On December 31, 2009, the Transportation Security Administration backed off on an ill-considered administrative subpoena it issued to trasportation industry blogger, Christopher Elliott. EFF assisted Mr. Elliott in responding to the subpoena.

The subpoena was hand-delivered to Mr. Elliott by a TSA representative on the evening of December 29, 2009. It sought all documents "concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009." The much-criticized directive had been given to hundreds of employees of TSA and the airlines and described some of the passenger-related security measures put into place in the immediate aftermath of the unsuccessful attempted bombing of a Northwest Airlines flight on December 25, 2009. The directive expired on December 30, 2009. Mr. Elliott obtained it in the course of his coverage of the situation and had sought TSA comment before publishing. The subpoena demanded all documents by the close of business on December 31, 2009, just two days after the agent delivered it.

Mr. Elliott’s counsel Anthony Elia, assisted by EFF and others, responded to TSA by objecting to the subpoena both on the grounds that it did not provide a reasonable time for Mr. Elliott to respond and because it improperly sought to require a journalist to reveal his sources and materials. Upon receipt of the objection, TSA first granted an extension to Mr. Elliott, then withdrew the subpoena entirely.

TSA also withdrew a similar subpoena it had issued to blogger Steve Frischling, but reportedly not until after the agents improperly threatened Mr. Frischling’s job and pressured him into giving them his computer, which they then apparently damaged. The facts of what occurred to Mr. Fischling are deeply troubling.

TSA should have known better than to use its civil administrative subpoena power to try to force these reporters to divulge their sources. This incident reinforces the need for a federal reporter shield law that fully embraces the new era of blogs, tweets and other nontraditional journalism tools. Nonetheless, we’re pleased that cooler heads prevailed at TSA this time.

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