AIR TRAVELER ID REQUIREMENT CHALLENGED

CRYPTOME.org ^ | July 18, 2002 | Gilmore vs. Ashcroft

[E. Pluribus Unum]

Secret rule demanding 'Your Papers Please' claimed unconstitutional

San Francisco - Civil libertarian John Gilmore today challenged as unconstitutional a secret federal rule that requires domestic US travelers to identify themselves.

"United States courts have recognized for more than a century that honest citizens have the right to travel throughout America without government restrictions. Some people say that everything changed on 9/11, but patriots have stood by our Constitution through centuries of conflict and uncertainty. Any government that tracks its citizens' movements and associations, or restricts their travel using secret decrees, is violating that Constitution," said Gilmore. "With this case, I hope to redirect government anti-terrorism efforts away from intrusive yet useless measures such as ID checks, confiscation of tweezers, and database surveillance of every traveler's life."

At issue is a series of secret security directives issued by the Federal Aviation Administration and/or the Transportation Security Administration (TSA), in consultation with the Department of Justice and the Office of Homeland Security. The directives appear to require US airlines to demand identification before allowing customers to travel. Because the directives are secret, no citizen actually knows what they require.

On July 4, Southwest Airlines staff prevented Gilmore from boarding a pre-paid flight from Oakland to Washington, D.C, where he intended to petition the government to alter the ID check. He then went to San Francisco International Airport and tried to purchase a similar ticket on United Airlines. Both airlines, though unable to identify any actual regulation requiring him to identify himself, prevented him from flying. United stated that they were following an unwritten regulation that had only been communicated to them orally, and which changes frequently.

"History shows many abuses when government agents can demand 'your papers, please!'" said Bill Simpich, an Oakland civil rights lawyer, and lead attorney in Gilmore's suit. "TSA plans to deploy 'CAPPS II' later this year. This will use your ID to search in a stew of databases like credit records, previous travel history, criminal records, motor vehicle records, banks, web searches, and companies that collect personal information from consumer transactions. Your life history will be gathered and scanned, using secret criteria, whenever you book a flight or arrive at an airport. If the machine decides you're a risk, the airline will not let you fly, and federal cops will show up to interrogate you. They will probably tell you that you were 'randomly' selected for all this attention, but they will be lying."

Gilmore v. Ashcroft, filed today in Federal Court for the Northern District of California, challenges every secret regulation that demands identification from innocent citizens, or restricts their domestic travel. Such regulations are unconstitutional because they are unpublished; require government agents to search and seize citizens who are not suspected of crimes; burden the rights to travel, associate, and petition the government; and discriminate against those who choose anonymity. The case also argues that because the regulations are secret, they violate the Freedom of Information Act.

Mr. Gilmore is a businessman, civil libertarian, and philanthropist. He was the fifth employee of Sun Microsystems, an early author of open source software, and co- creator of the Electronic Frontier Foundation, the Cypherpunks, the DES Cracker, and the Internet's "alt" newsgroups. He serves as a director on several for-profit and nonprofit boards.

The legal complaint, FAQ, and other case documents can be found at:

http://cryptome.org/freetotravel.htm

Contacts:

John Gilmore - plaintiff
+1 415 221 6524

William Simpich - lead counsel
+1 510 444 0226

David Greene - First Amendment Project. Contact FAP for comments on the burdening of the right to petition the government.
+1 510 208 7744

Linda Ackerman - Privacyactivism.org. Contact for CAPPS I and II profiling issues.
+1 415 215 9351

[Wonder Warthog]

"What precisely is the injury to the plaintiff sufficient to get him into Court? What right has he lost as a result of this action? He can go anywhere he wants, anytime a flight is available. All he has to do is show some reasonably satisfactory form of picture ID. Whatever infringement is de minimis."

The injury is that the requirement is based on unconstitutional "secret laws".

If the government wants to issue regulations requiring photo ID, then it should do so ACCORDING TO LAW, not by promulgating "secret regulations". That is one of the major reasons this country was founded.

[motzman]

Great Quote!

[E. Pluribus Unum]

Freedom to get on a plane with people who refuse to identify themselves? You can have it.

In case you hadn't noticed, all the people who were involved in the September 11th atrocity were very easily identifiable.

The WTC attack did not occur because Americans have too much freedom.

It occurred because:

• U.S. border/immigration policy (or selective enforcement thereof) allowed obvious terror suspects to enter and remain in the country while attending flight school.
• The terrorists were able to gain access to the cockpits of the hijacked aircraft.

Evidently people like you believe that America should now become a prison in lock-down mode. I hope you get your wish, you little coward.

[wcbtinman]

You forgot: Because citizens are disarmed on aircraft and are unable to defend themselves and their loved ones.

[E. Pluribus Unum]

You forgot: Because citizens are disarmed on aircraft and are unable to defend themselves and their loved ones.

You are right. I will try it again.

The WTC attack did not occur because Americans have too much freedom.

It occurred because:

• U.S. border/immigration policy (or selective enforcement thereof) allowed obvious terror suspects to enter and remain in the country while attending flight school.
• Law-abiding citizens are disarmed on aircraft to prevent them from being able to defend themselves and their loved ones.
• The terrorists were able to gain access to the cockpits of the hijacked aircraft.

[philman_36]

Authoritarian!

[philman_36]

Authoritarian!

[Hostage]

You have it exactly.

[realpatriot71]

I would rather be on an airplane with those whose IDs are checked.

Ok . . . while that is nice, you still have yet to establish how checking ID's makes your plane ride any safer.

I will guess from your lack of reasoned response that you actually don't have any idea how checking ID's makes a plane ride safer. Until you've got a point, please don't respond :-).

[Badray]

"Great Quote!"

Thanks. It's probably my favorite because of the message it brings.

I'm not a smoker, but smoking is the clearest and one of the most recent examples. It all started with no smoking on flights of less than 2 hours and that was all there was supposed to be. All you have to do is look at how smokers are treated now to see how far we have slid down the slope.

Guns and gunowners have been demonized for years and now it's at the point where people go into a tizzy over arming pilots. What's next?

[skeeter]

Though I can abide by many libertarians positions and respect their proclaimed dogged defense of the Constitution (if indeed thats truly what they are after), its this kind of wacko crap that will forever keep me from taking them seriously.

Stuff like this opposing ID'ing ones self before boarding a plane will gaurantee their position on politics' outer limits, outside looking in, for all eternity.

[dennisw]

I'm with you. Some libertarian positions are good. But this one on IDs to get on board airplanes brings out the anarchist types. Ego trippers, irresponsible fools. I've seen stupid libertarian stuff before but this one surprises me.

Only in America.

[dennisw]

Ok . . . while that is nice, you still have yet to establish how checking ID's makes your plane ride any safer.

-----> You are waaaaaay out there. What bold positions you are staking out! Party on dude!!!!

[TankerKC]

Secret rule demanding 'Your Papers Please' claimed unconstitutional.

The rule is "Secret"? Hmmmmm. I've been asked to show my ID before flights for at least 5 years. I don't think it is a secret.

But, wait! I see! It makes the story much more interesting to have it sound like some sort of secret conspiracy.

I’ve read enough.

[jdege]

AUI, prior to 9/11, the regs required that the airlines ask for ID, and required that passengers who refused to provide it be subjected to additional scrutiny.

FAA Security Directive 96-05:

1. IDENTIFY THE PASSENGER -

A. ALL PASSENGERS WHO APPEAR TO BE 18 YEARS OF AGE WILL PRESENT A GOVERNMENT ISSUED PICTURE ID, OR TWO OTHER FORMS OF ID, AT LEAST ONE OF WHICH MUST BE ISSUED BY A GOVERNMENT AUTHORITY.

B. THE AGENT MUST RECONCILE THE NAME ON THE ID AND THE NAME ON THE TICKET -- EXCEPT AS NOTED BELOW.

C. IF THE PASSENGER CANNOT PRODUCE IDENTIFICATION, OR IT CANNOT BE RECONCILED TO MATCH THE TICKET, THE PASSENGER BECOMES A "SELECTEE." CLEAR ALL OF THEIR LUGGAGE AS NOTED IN SECTION 6, BELOW.

6. CLEAR SELECTEE'S CHECKED AND CARRY-ON LUGGAGE, AND SUSPICIOUS ARTICLES DISCOVERED BY THE QUESTIONS ASKED;

A. IF THE SELECTEE IS ON A FLIGHT WITHIN THE 48 CONTINENTAL US STATES, OR TO MEXICO, OR TO CANADA, ITEMS CAN BE CLEARED BY EITHER OF THE FOLLOWING METHODS:

1. EMPTY THE LUGGAGE OR ITEM AND PHYSICALLY SEARCH ITS CONTENTS BY A QUALIFIED SCREENER, OR;

2. BAG-MATCH -- ENSURE THE BAG IS NOT TRANSPORTED ON THE AIRCRAFT IF THE PASSENGER DOES NOT BOARD.

B. IF THE SELECTEE IS ON AN INTERNATIONAL FLIGHT -- CHECKED LUGGAGE, CARRY-ON LUGGAGE, AND SUSPECT ITEMS CAN BE CLEARED ONLY BY THE FOLLOWING METHOD; EMPTY THE LUGGAGE OR ITEM AND PHYSICALLY SEARCH ITS CONTENTS BY QUALIFIED SCREENERS.

etc.

[Knitebane]

This was vaguely legal then. The airlines were requiring your permission to search your bags before they let you aboard their privately owned aircraft. If you provided ID, they would waive that. As it was mandated by the FAA, it might not have been legal then either but was never really challenged.

But since we now have Federalized airport security, the rules change. As a Federal official, an airport security person has the same status as a cop. The courts for years have stated that anyone acting under the orders of a law enforcement officer or working in collusion with a law enforcement officer fall under the same rules as a cop, Miranda, entrapment, probable cause, etc.

Therefore, searches of private property by Federalized airport security agents without probable cause will likely be ruled unconsititional.

Whoops. I guess that Ashcroft and Mineta didn't consider that when they proposed federalizing airport security.

As long is it is illegal for a cop to demand ID of a citizen in the passenger seat of a private automobile and then search them if they refuse to produce it, it will be wrong to do the same to an airline passenger. That's assuming no probable cause, of course.

A cop can ask you to provide ID at any time, but it's not required to have ID to walk down a public road. Unless you've broken some law, he can't require you to present ID. Same goes for a Federal cop in the airport. A private company can restrict you from using their property unless you show ID. A cop can't.

The guy that filed this suit is right.

[TankerKC]

You don't know anyhting about what I want, so don't assume that you do.

Speak to the issue. How is this rule "secret" if everyone knows that they are doing it?

[E. Pluribus Unum]

Speak to the issue. How is this rule "secret" if everyone knows that they are doing it?

They are doing it, but the "rule" they are using is secret. You can't read it. It is an unplublished law. There will be lots more unpublished laws if the imaginary safety over freedom crowd has its way.

Freedom is what made this country great. Wimps like you will give it all up in a heartbeat.

[TankerKC]

Do you do anything but call names? I'm quite sure that you wouldn't call me a wimp to my face. Go ahead and act like a tough guy on the 'net.