Sensitive Security Information

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In the aftermath of the September 11, 2001 attacks, the Transportation Security Administration (TSA) was created in the United States to take responsibility for the security of all modes of public transportation. Included in the responsibilities of this new agency was the authority to designate information as Sensitive Security Information (SSI). ^[1] Originally housed in the Department of Transportation, TSA was transferred to the Department of Homeland Security as a result of the Homeland Security Act of 2002.

According to TSA officials, SSI designated information is created by TSA and by airports, aircraft operators, and other regulated parties when they are establishing or implementing security programs or documentation to address security requirements. Information that is designated SSI can be shared with those who have a need to know in order to participate in or oversee the protection of the U.S. transportation system. Those with a need to know can include persons outside of TSA, such as airport operators, aircraft operators, foreign vessel owners, and other persons. SSI cannot be shared with the general public, and it is exempt from disclosure under the Freedom of Information Act.

There are 16 categories of SSI. TSA has distinguished these 16 categories into 3 types of SSI. Four categories are termed "categorical" and automatically designated SSI. Eleven categories require a judgment or analysis to determine if the SSI designation is warranted. One category requires a written determination by an office with determination authority to be deemed SSI. This category is "other information," which is a catchall exemption for information that TSA may wish to designate SSI that does not fit into the other 15 categories.

An agency Final Order on SSI can only be challenged in the U.S. Circuit Court of Appeals.

In the case of Chowdhury v. TSA, the ACLU has challenged the TSA's authority to withhold SSI from civil litigants and their attorneys in a Petition for Review pending before the U.S. Second Circuit Court of Appeals in New York. The ACLU is challenging the TSA's authority on 3 grounds: (1) whether TSA has the requisite statutory authority to withhold SSI from civil litigants and their attorneys, where TSA has determined that such disclosure would be detrimental to transportation security, (2) whether TSA's expert judgment to withhold SSI from civil litigants and their attorneys constitutes "actions committed to agency discretion by law" and (3) whether a TSA Final Order on SSI deprives the Plaintiff in this case of a constitutionally protected property interest without due process of law.

The Second Circuit has yet to rule on this case, after hearing oral argument from the parties in May 2005.

[edit] References

For Chowdhury v. TSA legal briefs, see, identitycrisis.name/?p=18