on 31 December 2009 
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Journalist Chris Elliott says this evening that — a few hours after the Dept. of Homeland Security extended a deadline for him to comply with a subpoena — he received word from his attorney that DHS withdrew the subpoena.
The stunning reversal occurred as media outlets throughout the country picked up the story that the DHS and TSA were playing hardball and going after Elliott and blogger Steven Frischling with subpoenas and tough tactics after they published the post-Northwest flight 253 security directive on new passenger screening rules.
Perhaps dropping the subpoena on New Year’s Eve made more sense than letting the issue and the bad publicity for the TSA linger through upcoming news cycles.
Elliott, who wouldn’t comment while the subpoena was pending, says tonight, Dec. 31, that he was hearing all day from multiple sources that the “TSA was going to cave.”
“There definitely was some damage control going on here,” Elliott says.
Elliott says he feels “very pleased with the outcome” as he was prepared to dig in to protect confidential sources.
He was surprised with the speed of the DHS reversal, adding that he knew the department was considering withdrawing the subpoena, but expected the move to come perhaps next Monday or Tuesday.
Short of a withdrawal, Elliott says he and his attorney had been considering filing a motion to quash the subpoena or to allow the clock to run out and let the Jan. 20 deadline lapse. Earlier today, the DHS had extended the initial deadline for compliance with the subpoena from Dec. 31 to Jan. 20 at the request of Elliott’s attorney, but withdrew the subpoena outright this evening.
Among the issues that remain is whether the TSA investigators were able to find the source of the leaked document from their examination of Frischling’s computer or perhaps through other means, making the subpoena of Elliott unnecessary.
The TSA couldn’t be reached for comment.
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Good news after all bad news.
Didn’t pay much attention to it thus far, but drew up my own “rules of engagement” for my blog. Blogging getting more and more scary these days. Suggest you do the same.
Thanks for keeping us all up to date on this amazing story!
We tried to do our part in supporting Chris Elliott & Steven Frischling by passing the information along via social media like Twitter and Facebook. I was pleased to see it retweeted and spread so quickly
Do you think the social media outrage and support had any affect?
So glad to see it reversed so quickly! Happy New Year, indeed!
Happy Hotelier: I think there is no longer, if there ever was, a difference between being a blogger and being a journalist. Either way, you have to protect your sources otherwise all your information will dry up. We live/feed off information that no one else may have and you have to have those rules of engagement in your mind before you start off. Above all, protect those people who take risks to provide you with great news and information. That’s how I see it.
Soultravelers3: I think social media played a major role in making these subpoenas go away, but I think it’s also possible that the TSA succeeded in finding the identity of the leaker of the security directive document and didn’t need Elliott’s subpoena anymore.
After all, Frischling, although he had once worked as a newspaper photographer, wasn’t grounded in the principles of professional journalism and caved in, providing the TSA with his computer.
Frischling claims that the TSA got nothing of worth off his computer because he had deleted the e-mail investigators were looking for.
We don’t know if they found anything interesting to further their investigation, but the TSA certainly was pursuing the probe on a wide front and might have found what they needed elsewhere.
Steven faced extreme pressure: not-so-veiled threats about the loss of his livelihood, and that the TSA would make his life miserable.
So, without an attorney, he wasn’t prepared to fight, as Chris did. Frischling says he had nothing to hide since he really didn’t know the identity of the leaker.
But, in reality, Frischling did have something to protect: the identity of the source and all future sources. He gave the TSA his hard drive and they turned this into a fishing [flying with fish] expedition.
What source tomorrow would provide Frischling with confidential information, knowing that under pressure he might turn them in and provide information to probing governmental authorities?
What other sources were inadvertently identified when they examined his hard drive?
I sympathize with Frischling’s plight. But he got bullied into doing something that I’m sure he wishes — in hindsight — that he hadn’t done.
Did social media have a major role to play in getting Chris’s subpoena to disappear?
Absolutely, although I’m not saying it necessarily was the prime factor.
This story spread like wildfire and was all over the social media networks and in the press.
I was wondering yesterday whether then-New York Times reporter Judith Miller would have been thrown in jail in 2005 for failing to testify before a grand jury investigating the leaking of the identity of CIA agent Valerie Plame, if social media had been in full swing at the time.
Social media certainly would have rallied her supporters and had an impact on that case, as it did this week in the cases of Frischling and Elliott.
I have been struggling with whether or not to put in my 2 cents about Christopher Elliott and Steven Frischling releasing the TSA’s Security Directive SD-1544-09-06. Obviously, I have decided I can no longer remain silent. I applaud them for their courageous effort to inform the public.
The days following the attempted bombing of NW FLT# 253, I was shocked at the lack of information being released by the TSA about procedures passengers should expect. Initially, we were only advised to expect longer security lines and “Passengers may notice additional screening measures put into place to ensure the safety of the traveling public on domestic and international flights”.
I have come to learn in over 15 years as a professional travel consultant, passengers need to know what to expect during their travel experience. For most travelers –especially leisure travelers, travel days are filled with not only excitement about their adventure but a certain amount of anxiety about the unknown, especially at the airport and on the plane. I have written a very detailed step by step document for my clients which takes them from packing their luggage to the arrival to the hotel. It includes what to expect throughout the travel day, where to check in for their flight, how to go through security quickly and efficiently, how to complete their immigration and customs forms, how to clear immigrations and customs lines, what to do if their luggage is delayed or lost and where to meet their transfer transportation company. Why have I prepared such a comprehensive document? My experience has taught me when my clients know what to expect, what to do and where to go, they have a much more enjoyable travel experience.
The information provided on the TSA website was absolutely worthless. The airline websites were not consistent. There were bits and pieces here and there on these websites. The news stations were broadcasting all kinds of new restrictions. I needed one reliable source to provide me with information to advise my clients. I was thrilled when on twitter I saw the posts by @elliottdotorg and @flyingwithfish. Finally! Reliable professional sources posting information I could offer my clients to hopefully ease their anxiety and let them know what to expect.
There was no reason for the TSA to be so secretive, especially if passengers are to be instructed to follow new procedures during flights.
After a slow couple of travel years due to world events and tough economic times, people are beginning to travel again. The last thing we need is to scare the traveling public into not traveling by keeping them in the dark. I personally find the procedures in the directive ridiculous. They protect no one and greatly inconvenience the travelers. The materials for the bomb were sewn into underwear, maybe we should not be allowed to wear underwear when traveling?! I am hoping the new procedures contained in the directive will be dropped and we can go back to enjoying our travel experiences as usual-or at least as usual has become.
When I started writing this, subpoenas issued by the Department of Homeland Security to Christopher Elliott and Steven Frischling had not yet been dropped. The MacBook taken from Frischling was returned broken, replacement at the time of writing has not been determined. Elliott and Frischling have since been notified the subpoenas are “no longer not necessary” by the Department of Homeland Security.
I am glad the Department of Homeland Security has come to their senses in realizing they have bigger fish to fry and to better utilize taxpayer dollars and government resources.
Stephanie: In the days after Christmas, when there were news reports (coming mostly from foreign airlines) about the new security procedures, I kept going to the TSA website to get the details, but the only thing posted there was a press release that was all public relations and no substance or details. I kept going back to the website, thinking maybe I was looking in the wrong place for the details.
The TSA handled this whole thing very badly, and its treatment of Chris and Steven made it all the more appalling.
Dennis,
I am very grounded in my principals as a journalist and I still am a journalist.
I know for a fact there was no relevant data on my computer, as my email does not exist in my computer. My email exists on a server more than 2000 miles away. The information I received was pasted into the email, not an attachment.
Thus, there was no footprint of the email. The Department of Homeland Security confirmed that there was no trace of the email information they were seeking on my computer. It was received and deleted from my webmail server. I never replied to the email or acknowledged the email in any way.
Most shield laws protect sources who request anonymity or who ‘deserve anonymity.’ As no anonymity was requested by my source…as I do not know the identity of my source, the shield law (should there have been a Federal Shield Law) would not apply.
You cannot protect something that is not there.
The subpoena was for content in my possession, I had no content relating to the identity of my source in my possession. Had the DHS sought to subpoena access to my deleted webmail files, which are not in my possession then a legal challenge would have been brought.
Stating I caved in without weighing all the facts and factors is not responsible reporting.
You should try to convince Federal Agents that you don’t know your source and have no contact information for your source. It is very frustrating.
-Steven Frischling
http://www.flyingwithfish.com
Steven: You are definitely not the bad guy — but a victim — in all of this and I’m not trying to paint the picture that you are the bad guy. As we both know, the TSA used bullying tactics to get you to comply with the subpoena. These tactics should not be used against journalists just trying to do their jobs in our society.
You say you have no obligation to your source. Basically you say you had no source to protect since the document just landed in your in-box and you had deleted all traces of it.
But, you did publish it.
And, using common sense, do you think the person who provided you with the document was looking to get identified? After all, as you say, the person’s e-mail account did not make him/her easily identifiable. And, contrary to what you said on Fox News yesterday about the security directive not indicating that it was secret, the document says the following:
“All aircraft operator personnel implementing this SD must be briefed by the aircraft operator on its content and the restrictions governing dissemination. No other dissemination may be made without prior approval of the Assistant Secretary for the Transportation Security Administration. Unauthorized dissemination of this document or information contained herein is prohibited by 49 CFR Part 1520 (see 69 Fed. Reg. 28066 (May 18, 2004).”
So, obviously the source was taking a risk in providing you with the document, which you say you did not solicit.
And, I’m not saying that the TSA’s seizure of your computer yielded any results for them about the source. It sounds from reports that they have identified or are close to identifying the source, perhaps through other investigative means.
But, under duress, you took the additional step, beyond giving up your computer, of proactively helping the TSA find the source by tweeting — apparently when the TSA agents were in your home — a request for the source to contact you.
Also, even if there were no trace of your source’s email on your computer, you gave the TSA access to all of your other emails, right? Or were they all deleted, as well? Which means that the TSA could read emails from anyone who contacted you on myriad issues. What would your past and future sources think of granting the TSA access like that?
Like I said, it is easy for me to cast stones from afar because there are no TSA agents in my home this morning, making all kinds of threats.
And, few people can say how they would have acted unless they had walked in your shoes.
But, wouldn’t lawyering up or at least telling the TSA that you wouldn’t speak with them until you had found an attorney, made for a much more satisfying tactic for you in this matter?
Sometimes you have to do what you think is right when you are put in that position. It’s easy for people to comment on what you should have done, with hindsight I am sure we would all go about things differently.
Dennis,
My email exists via webmail, not on my computer, it lives on a server 2,000 miles away. There is no way to view, access or recover email via my computer. The only way to access email while on my computer is by logging into my mail service via the web. The only way to recover deleted email is to access the server and perform data recovery once it is cleaned from their system.
There is no trace of my email on my computer. I have long since chosen to not have my email on my computer, or any way to save my email on my computer directly, to prevent unauthorized access to my email.
Had investigators sought access to the email server with a subpoena that would have been met with a legal challenge. I would not provide access to my email server for a variety of reasons.
Any and all email correspondence that is of a secure nature is also removed from my Blackberry and iPhone as a matter of habit.
My email has been treated in a secure manner for many years given that accessing someones computer remotely can be done quite easily without the owner/user of that computer even being aware that it is happening.
How far are you willing to go to protect the identity of someone who has no identity? Do you jump in front of the bus to protect the open air?
-Steven Frischling
http://www.flyingwithfish.com
Darren: I totally agree with you, which is why I say that no one knows how they might have reacted if they were in Steven’s or Chris’s shoes.
And, my heart goes out to both of them for the torment that the TSA put them through.
Dennis, your just doing your job
I don’t think I would have published that document, but, that’s easy for me to say now I have read what has happened too Steven and Chris. There’s one thing for sure, you have to learn lessons from this type of experience.
Steven: You ask: “How far are you willing to go to protect the identity of someone who has no identity? Do you jump in front of the bus to protect the open air?”
You protect the “open air” because otherwise freedom of the press will be suffocated.
Happy Hotelier, can you elaborate on the blog “rules of engagement” idea?
Thank you.
@ Dorothy
My Rules of engagement are here: http://www.happyhotelier.com/rules-of-engagement/
But they may be poorly written.
BTW is your link down or so?