Brief Amicus Curiae of FlyersRights.Org in Support of Respondent in Department of Homeland Security v. MacLean

Abstract

Citizens interact with disclosures made by whistleblowers protected by the Whistleblower Protection Act in two ways. The first is a well-established and well-understood response: citizens are part of the feedback loop that puts pressure on government to revise and correct the procedures or actions that led to the disclosed problem. The second interaction is less recognized and has been the subject of less discussion: citizens are actors who have choices as to which risks they encounter and how they encounter them. In this case, that means that the Respondent’s disclosures not only led to pressure on the TSA from the media, legislators and the public, but might have also led individuals not to travel because of their perception of additional risk had the TSA not changed course and reversed its decision. Congress has explicitly recognized the interest that citizens as travelers, as opposed to citizens as citizens, have in disclosures of the kind made by Respondent here, that is, disclosures of potential threats to civil aviation. This recognition, in the form of requirements for guidelines to be issued regarding the appropriate release of threats to civil aviation to citizens, explicitly acknowledges the importance of providing information to citizens as travelers.The release of this information to citizens is likely to have an effect on how those citizens act in their role as travelers. Research shows that citizens react to perceptions of risk in making and altering their travel plans. Receipt of information regarding specific threats to, or systemic failings in, the aviation travel system, will undoubtedly allow those citizens to alter their plans and exercise some level of control over their perceived exposure to risk in these situations.This interest, not yet explicitly discussed in this appeal, supports the decision of the United States Court of Appeals for the Federal Circuit in this case. The interests of citizens as travelers push the calculation toward one that favors disclosure, rather than one that disfavors it. Thus, while not determinative, these interests support the holding of the Court of Appeals that the phrase “specifically prohibited by law” does not include administrative regulations. The lower court’s holding thus makes more information available, in a manner provided for by Congress, and is supported by citizens’ interests in confronting the risks of their own air travel.