Department of Homeland Security: Your subpoena “is no longer necessary”

The Department of Homeland Security has withdrawn a subpoena that would have required me to furnish it with all documents related to the Dec. 25 TSA Security Directive published on this Web site.

The move came after I was granted an extension on the government’s request earlier today. I also signaled my intent to challenge the subpoena in federal court next week.

My attorney, Anthony Elia, received the following confirmation from the Department of Homeland Security:

Mr. Elia:

This is to confirm our earlier telephone conversation that the TSA subpoena of December 29, 2009, issued to your client, Mr. Christopher Elliott, is being withdraw as no longer necessary.
Thank you for your assistance and have a happy and safe New Year.

John A. Drennan
Deputy Chief Counsel (Enforcement)
Office of the Chief Counsel
Transportation Security Administration
Department of Homeland Security

I also just spoke with Steve Frischling, who had also been served with a subpoena in connection with the security directive. He says he received a phone call from a deputy chief counsel for enforcement at the DHS to let him know he was off the hook and that the agency had offered to buy him a new computer. His previous computer had been damaged after Frischling consented to a search of his computer and hard drive.

Needless to say, I’m delighted by this turn of events.

TSA did the right thing by withdrawing its subpoena. Perhaps it has bigger problems to worry about?

(Photo: Phantamage/Flickr Creative Commons)

  • http://www.eyeonannapolis.net John W. Frenaye

    Congrats. But you know they probably got what they wanted when Fish rolled over for them. IT was still inexcusable!

  • http://www.thevacationgals.com Kara

    That’s great, Chris. I wonder if FlyingwithFish is now being left alone, too? Sad that he handed over his hard drive and now it’s not operating well… a lesson to us all. Get attorney’s advice first before handing over precious, precious items like your laptop!

  • Frank Palmer

    Chris,
    That’s great news. With you sticking to your principles that makes you an even better person and advocate for us.

    Hopefully now the TSA doesn’t stick your name on the screw with you everytime you travel now. I gotta think that there are some heads rolling already at the TSA so hopefully they will not bother you again.

  • Marc

    Congratulations, Chris. This is excellent news and I’m happy everything worked out for you. I second @Frank and hope you don’t get stuck on a “screw you” list somewhere (realistically, I know it doesn’t exist, but I wouldn’t put anything past TSA).

    Please keep up the great work and stick to your principles!

  • Sarah

    Never, ever consent to a search. Make them get a court order and meanwhile, lawyer up and drag out the process.

  • http://www.Nancydbrown.com Nancy D. Brown

    Great news! Thanks for sharing. Happy New Year to you and your family.

  • http://www.intelligenttravelblog.com Marilyn Terrell

    So happy and relieved to hear this news, Chris. You stood up for your rights and won!

  • Tom Betz

    Chris: What would you do differently next time? Do you feel that Big Brother now has you in their crosshairs? Take home lesson?

  • Paul

    Great news, Chris! I’m taking all the credit because I called up Special Secret Agent Flaherty to civilly express my dissent about how this was being handled. The Men in Black are indeed afraid of the Bill of Rights! FWIW, I worked on the Obama campaign and have never voted Republican in my life, so don’t paint me as a member of the tin-foil hat brigade.

    Paul

  • Dave

    Thank you for sticking to your principles for us!

  • Albert Kitomari

    Chris.

    I admire your courage in standing up for your rights as well as protecting your source. Have a Happy New Year sir.

  • rich

    Great news Chris, the vindictive tenth rate bunch of penpushers backed down!

    Happy new year indeed!

  • Ralph

    Congrats. The problem with “lawyering up,” as some have suggested, is that it can get quite expensive. Since the government has lawyers on salary, they have an advantage over an innocent citizen. Glad it worked out for you and I too enjoy your website.

  • Erik G.

    I wonder if Dan (the) Kunt(z) will have a job Monday morning.

  • Michael H

    Common sense prevails. Congrats.

  • MikeS

    So the subpoena was a kneejerk un-thought out reaction like everything else the TSA does.

  • Susan

    I’m glad TSA finally got smart. Maybe it was the pressure from the press? Nah!

    Heckuva job, Chris (and Steve)!

    Let us know how your next encounters with TSA minions go. Happy flying?!?!?

  • http://www.nslphotographyblog.com Ned S. Levi

    That’s wonderful. I applaud you for standing up for your rights as a journalist. You have shown outstanding courage, and have brought great honor to yourself, your family and your profession.

    TSA and DHS have many more important things to do with their time. Perhaps they will get back to their work of actually protecting us with rules and regulations, as well as procedures and practices which make sense, unlike those recently put in force.

    I am proud to be your colleague.

    I wish you and your family the very best for a sweet new year.

  • Cara Kretz

    Chris, that will teach ‘em to mess with you. Seriously great news and well played. Happy New Year!
    –Cara

  • http://www.soultravelers3.com soultravelers3

    Excellent! Happy New Year! I’m sooooo happy to hear this!

    I’m so sorry that you and FlyingwithFish had to go through this as I can just imagine how stressful it must have been for both your families.

    Congrats!

  • http://www.roamingtales.com Caitlin

    It’s good news for you to start 2010 with no more stress and lawyer fees.

    It’s remarkable they’re buying Frischling a new computer.

    I wonder if they found what they needed from his computer.

    I still say that the decision to comply or not comply comes down to the agreement you made with the source. If someone just randomly mails you something there is no agreement. But if you make a deal to protect their anonymity, that should be honoured.

  • http://www.intelligenttravelblog.com Marilyn Terrell

    Chris, here’s a comment on BoingBoing that I think deserves attention:

    Anonymous | #5 | 18:26 on Thu, Dec.31 |
    “Speaking as an attorney, I would advise you not to let this go. Make an ethics complaint against the government attorney that signed the subpoena in DC or the jurisdiction they are licensed to practice law in. You don’t subpoena someone, then just ‘let it drop.’

    They will be forced to: (1) admit there was no basis for the subpoena, in the first place, (2) make a dubious ‘national security’ claim as to why they can’t discuss, which will dog them for their entire career, or (3) admit that they made a forensic scan of a citizen’s computer and used the evidence to pursue a whistleblower, after having used a subpoena to strongarm a citizen (again, something that will arise again ten years later during his Senate confirmation hearing for another position).

    Long story short, government drones who use their subpoena power to bully citizens blowing the whistle on government incompetence deserve to be held to account. Do not back down, an ethics complaint is very low cost, and very high reward.”
    http://www.boingboing.net/2009/12/31/update-on-bloggers-t.html

  • http://www.tnooz.com Dennis Schaal

    Chris: Congrats on sticking to your guns and winning this thing.
    I disagree a little with Caitlin above that the issue hinges on your agreement with your source. In this instance, at least as Steve Frischling described it, the e-mail with the security directive just showed up in his in-box with no other interaction with the source. So, if you go ahead and use that unsolicited information and publish it, then I think there is an obligation to protect the source.

    And, obviously I am not an attorney, but I think the idea of an ethics complaint, which Marilyn outlines above, is a very interesting one.

    I hadn’t realized that in the case of civil subpoenas, like the ones you two were served, that the TSA didn’t need to get court approval. That is troubling.

  • Mary

    I whole heartedly agree with Marilyn Terrell about not letting this go. This kind of behavior by TSA needs to be curtailed and curtailed quickly. Lawyers are expensive and there is no reason Chris should have had to spend any money defending hismelf against the TSA’s stupidity and then for them to just get off by saying they are letting it drop. When accused the only safe way out is to lawyer up and pay, innocent or guilty. Congrats Chris and Happy New Year to everyone.

  • Michael Sommer

    I’d say that they have bigger problems than you! With all the money in their budget, the different US Government departments can’t even share information between the agencys. What id the TSA ran their agency like a business and not a US Government agency? They need leadership from the real world and not a politician ! Way to go Chris.

  • Mara

    That’s great to hear. Thanks for the update! Happy New Year!

  • Joe Farrell

    Glad to hear the adults in DC finally got involved in the process. While it is likely that they got the headers they needed from Frisch, they still could have pursued the subpoena against you out of a sense of spite. This happens a lot more often than you might believe because they can – you stood up and told them to pound sand.

    This entire incident reeks of junior level people over reacting to the threat of 12/25, by putting in place all sorts of controls that bear no relationship to preventing another such threat. Then, on Monday, the senior staffers arrived after the long holiday weekend, looked at what the ‘kids’ had done over the weekend and freaked out. They immediately ceased the idiocy that the ‘kids’ put in place over the weekend, including the subpoena which likely began the process the day you posted the SD. It took them 3 days to get the SD from Mr. Kuntz to a local marshal – then the supervisors of the Marshals said -’ this is crazy, why do I have to serve this?

    The senior marshals then needed to call someone to make sure this was ‘for real,’ which given the season resulted in another day – which then resulted in getting someone out on the 29th to serve you.

    When the adults [i.e., the senior appointed and career officials] discovered what was going on in the investigations division on the 30th, probably from reading the Washington Post, they freaked out and it took another day for the informaiton to percolate up and down the chain of command – which meant the decision was made at senior levels to drop the inquiries for political reasons – not legal ones. And it took the afternoon of the 31st to get the word out Frisch and Chris –

    I don’t what to fear more – a totally arbitrary and capricious government agency exercising what it THINKS is a criminal subpoena power or the fact that they dropped the inquiry for political and not security or legal related reasons. . . .

  • Ronda Cantin

    Congratulations! It must be such a relief to have that off your back by the New year. I hope that you dont have future issues like these. Happy new year!!

  • http://writingtravel.com Lanora Mueller

    Relieved to hear this good news. All the best to you and your beautiful family in 2010. Will be interested in seeing what you do with the ethics complaint suggestion.

  • Amy

    Sounds like you handled everything very well. Thanks for being such a great advocate for travelers and for just ordinary citizens.

  • http://www.stuartgustafson.com Stuart Gustafson

    We’re happy for you. It’s just too bad that you had to engage the services of an attorney to get it done. Of course, the fact that the Directive was going to expeire on December 30, 2009, was never mentioned. Imagine — all that fuss over a Directive that only had a life span of 6 days!
    Keep up the good work, Chris!

  • Peter M. Zollman

    Chris —

    Congratulations on winning this battle. More important, congratulations on fighting it. I hope your legal bills weren’t too high, and that they might be covered by someone you write for. (Or even better, if your attorney acted pro bono!) I wonder whether you could get the ACLU to represent you in a lawsuit against DHS to recover them. (Or if they were low enough, if you could take DHS to small-claims court for them.)
    Regardless, best wishes for a happy and healthy, peaceful and prosperous new year.

    Peter

  • frostysnowman

    Congrats and Happy New Year, Chris!

  • Eric

    Chris,

    Great news. I’m glad you were able to preserve your journalistic integrity and not give up your source. Here’s to 2010 being a better year than last.

  • Flush Withpride

    YEAH, what Marilyn Terrell said!

    Don’t let this drop. Pursue them. If they aren’t forced to recant formally, back down, make amends….they’ll simply be emboldened. They’re pretty doggone obtuse.

  • http://www.roamingtales.com Caitlin

    @Dennis Yes, I agree with you that when you decide to publish anonymous information, it does give you some responsibility to that source. I agree that it’s an ethical position to try to protect that source if possible. I just don’t rate it on the same level as making an explicit commitment to a source, which is usually what we’re talking about when journalists go to jail to protect sources.

    While I respect Chris’s decision in this matter – and he’s come out looking very good – I’m not willing to criticize Frischling’s different decision as some have done.

  • LadySiren

    Chris -

    Glad to hear the witless wonders over at the TSA came to their senses. Also, good for you on fighting the good fight; please keep up the good work. :)

  • Barry Graham

    We’re proud of you Chris.

  • Steve

    It’s interesting that, in the TSA’s efforts to gather computer forensics, they apparently destroyed the very information they were looking for.

    I’m not sure I’d ever trust that a laptop they gave me as a replacement wasn’t
    bugged! (After that, they wouldn’t have to wake up a judge to find out what they wanted to know!)

  • http://nodebtworldtravel.com brian

    This was not a classified document. So why they heavy handedness?

    Glad this subpoena was dropped and more important things can be focused on.

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  • Nobody

    Your confirmation from John A. Drennan doesn’t look very official. Where’s an official subpeana cancellation in legaleeze and latin phrases. You may have received some correspondence from a “well-meaning” employee “who exceeded his level of authority”. You may find out the hard way about your failure to appear when some ugly badge carrier handcuffs you long after you thought this was over.
    Maybe not you, in the public eye, though, but possibly Joe-Blow blogger on TSA colors of terrorist, I mean, extremist alerts.

  • Michael Liebmann

    It just hit me. Where you said, and I quote:

    “I also just spoke with Steve Frischling, who had also been served with a subpoena in connection with the security directive. He says he received a phone call from a deputy chief counsel for enforcement at the DHS to let him know he was off the hook and that the agency had offered to buy him a new computer. His previous computer had been damaged after Frischling consented to a search of his computer and hard drive.”

    This may be a bad thing for Mr. Frischling, because unless he is actually given the money to replace his computer, or he is told to send the bill to DHS, he could end up with a computer with tracking software put in by DHS, maybe?

  • http://www.tech-wd.com فيس بوك

    this is a good news Chris congratulation

  • http://asiguraridelocuinte.com Asigurari Locuinte

    Relieved to hear this good news. All the best to you and your beautiful family in 2011.