A federal air marshal in Miami named Jose Lacson says he was just venting when he posted information on a website dedicated to law enforcement issues. The information, he later told investigators, was "fictitious." The content, he said, was "made up" and not based on facts.
Transportation security officials concluded Lacson disclosed "sensitive security information" in four comments on the web site Officer.com. An air marshal since 2002, Lacson was fired in 2011 for making unauthorized disclosures. Investigators determined the comments were detrimental to transportation security.
Does it matter, as Lacson claims, that he fabricated the content of the Internet posts? That's the question the U.S. Court of Appeals for the D.C. Circuit will confront at a hearing Thursday. Lacson contends the Transportation Security Administration can't label something "sensitive" if the information is false. DOJ lawyers argue the accuracy of the statements is beside the point.
The substance of the Internet posts is blacked out in court documents in the D.C. Circuit, but the comments, according to the government, are personnel-related. U.S. Justice Department lawyers said Lacson's posts "specifically referenced the number, deployment and attrition rate of Federal Air Marshals hired at various times and deployed at various duty stations."
Ultimately, the appeals court ruling could affect the success of any challenge to TSA's decision to fire Lacson. The Merit Systems Protection Board, where federal employees air personnel complaints, earlier dismissed Lacson's case pending the resolution of the dispute in the D.C. Circuit.
DOJ lawyers said Lacson in 2010 posted under the screen name "INTHEAIRCOP" on the officer-themed web site. Lacson identified himself as a federal agent in his profile, and he used a photo of his air marshal's badge as his avatar, according to the government's court papers.
Lacson's attorney, Lawrence Berger of Glen Cove, N.Y.'s Mahon & Berger, argues in the appeals court that the truth or falsity of the Internet posts will determine whether TSA correctly labeled the remarks as "sensitive security information."
There's no evidence in the record about the accuracy of the posts. Berger wants the D.C. Circuit panel to set aside the TSA's order, from September 2011, finding that the details comprised sensitive security information.
The TSA, Berger said in court papers, built its case on a hearsay statement from a special agent. And that statement, Berger argues, only applies to two of Lacson's posts on the officer-themed web site.
Sensitive security information, according to DOJ, is "information obtained or developed in the conduct of security activities, including research and development." The covered categories include "specific details of aviation security measures" and information about the deployment and number of federal air marshals.
"There is no direct evidence, let alone substantial evidence, of the veracity or the source of the statements, or that the information was 'applied' in any way by the agency to its operations," Berger wrote in a brief. "Lacson asserts that the postings were 'fictitious,' 'made up,' and not 'factual,' and he was just venting."
Berger wrote, "the record is devoid of even a scintilla of evidence that the Internet posts were accurate."
Edward Himmelfarb of the Justice Department's Civil Division said in court papers that a top TSA agent in Miami determined the accuracy of one of the posts—about the attrition rate of air marshals in the Miami office.
That rate is redacted in DOJ's court brief in the D.C. Circuit. Whole pages in the court file, in fact, are blacked out. The lawyers in the case submitted public versions of their court papers and they submitted unredacted copies to the judges on the appeals court.
The accuracy of Lacson's statements, DOJ lawyers argue, misses the point. TSA "may reasonably determine that certain statements, although not technically accurate, may nevertheless disclose security vulnerabilities because they reveal a concept or general state of affairs that should be protected in the interest of transportation," Himmelfarb wrote in a brief.
A federal agent shouldn't be allowed to get around the restrictions on the disclosure of sensitive security information "by adjusting the figures to introduce inaccuracies," DOJ lawyers said.
Lacson's proposed 'inaccuracy' exception, according to DOJ, "would provide a means of circumventing the SSI regulations that would seriously undermine their efficacy."
If TSA "guarded against the unauthorized disclosure of only absolute truths, its failure to prevent the disclosure of falsehoods could, in certain contexts, reveal SSI by implication," DOJ lawyers said.
D.C. Circuit judges Merrick Garland and Janice Rogers Brown, sitting with Senior Judge Stephen Williams, are set to hear the dispute Thursday morning.