Secondary Screening: Hacks And Bloggers's Epics on Gilmore Epic

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December 11, 2005 | Hacks And Bloggers's Epics on Gilmore Epic

Kevin Drum at the Washington Monthly picked up on the Gilmore Epic, and has prompted me to post this post-mortem media round-up on Gilmore's hearing on Thursday.

My take, published on Thursday in Wired News:

A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Thursday on tech entrepreneur and internet freedom fighter John Gilmore's challenge to a secret government order forcing airline passengers to show identification or submit to a pat-down search.
The hearing pitted a matter-of-fact government attorney against Gilmore's impassioned, podium-banging lawyer, James Harrison, in a closely watched legal battle over government secrecy and antiterrorism measures that has federal officials defending a rule whose existence they will not admit in open court.

Gilmore contends that the policy violates his right to travel and that the additional search of those who don't show ID is a form of punishment.

"When a cop asks you for your ID on the street, you are free to walk away. There is no penalty," Gilmore said outside the courthouse. "If you refuse to show ID at an airport, you can't fly."

In court, Justice Department attorney Joshua Waldman countered that the identification requirement, if it existed, was a minimal intrusion and enhanced airline security.

"The requirement promotes the right to travel by protecting everyone's safety," Waldman said.

The arguments Thursday focused on three issues: whether the identification or search requirement violates the Fourth Amendment, whether the government has to show the public and the courts the text of rules that affect the public, and which court has jurisdiction over constitutional challenges to such rules.

[...]

Appellate Judge Steven Trott repeatedly questioned Harrison about whether asking for identification really implicated the Fourth Amendment's ban on unreasonable searches and seizures, calling it Harrison's "weakest argument."

But Trott also questioned the government's case, asking Waldman why the United States was "playing cat and mouse" with the courts by alternatively referring to the identification-or-search requirement as a policy, a rule and a law-enforcement technique.

The presiding judge, Richard A. Paez, probed Waldman about the government's defense of a rule it refuses, in Waldman's words, "to confirm or deny the existence of."

"Doesn’t that strike you as a bit odd?" Paez asked.

Judge Thomas G. Nelson also questioned the government's secrecy.

"How do we know this is an order?" Nelson asked.

Full story.

Paul Elias, an Associated Press reporter who forgot his driver's license at home and talked his way into the courthouse with a business card and an ATM card with his picture on it, led with this:

A wealthy Libertarian who is fighting a requirement that airline passengers show identification before traveling asked a federal appeals court Thursday to broaden the scope of his battle to cover other forms of commercial transportation.

and noted:

Gilmore arrived in court Thursday wearing Birkenstock sandals and a small pin on his lapel that read "Suspected Terrorist."
That same pin prompted a British Airways pilot to kick Gilmore off a London-bound flight in 2003.

Full story.

Oakland Tribune's premier hack (that's not pejorative) Sean Holstege filed this:

Millionaire John Gilmore didn't show photo identification to walk into a federal courthouse Thursday, where his attorney tried to persuade a panel of appellate judges that nobody should need ID to board an airplane.
Sacramento attorney James Harrison made special arrangements to get his client past the checkpoint, where every other member of the public was asked to show ID. But no such arrangements were possible when Gilmore tried to board a Southwest Airlines flight at Oakland International Airport on July 4, 2002.

Full story

News.com's Declan McCullagh piped in with his usual fine prose style.

A federal appeals court wrestled Thursday with what seems to be a straightforward question: Can Americans be required to show ID on a commercial airline flight?
John Gilmore, an early employee of Sun Microsystems and co-founder of the Electronic Frontier Foundation, says the answer should be "no." The libertarian millionaire sued the Bush administration, which claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it

Full story.

My friend Justin Scheck of The Recorder, a West Coast law paper, filed this feature, with some fine coloring:

Bespectacled, bearded and Birkenstocked (with Dr. Seuss socks), John Gilmore cut an appropriately iconoclastic profile Thursday as the centerpiece of a notebook-wielding gaggle in front of the 9th U.S. Circuit Court of Appeals.
Gilmore, a tech-boom multimillionaire who can't fly on airplanes due to his refusal to show identification at airports, is a star -- and major funder -- of the electronic privacy movement.

He's been at the center of an increasingly strange piece of litigation for the past three years since he sued the government, claiming that the requirement to show ID before boarding a plane is unconstitutional.

Complicating matters -- and nourishing conspiracy theories -- is the government's ongoing refusal to disclose what, if any, such requirement is on the books.

(Note to Harrison, telling a legal reporter that the judges you just tried to persuade were "a terrible panel" might not be a great idea.)

Full story.

Tim Cavanaugh of Reason filed this factually-challenged bit for Reason's blog.

Most of today's arguments turned on various points tangential to the central argument. In particular, there's a jurisdictional question about whether the Ninth Circuit should be hearing the case. Both sides argued that the case should be remanded to a "lower court" (presumably the Northern District of California, which dismissed the case last year), though Department of Justice lawyer Joshua Waldman held out the option of the Ninth Circuit's deciding the case on the merits. The interesting part is that the jurisdiction brouhaha arises from the question of who is actually ordering the ID check. The Transportation Security Administration claims it gave an order to demand IDs to the airlines on the authority of Congress, but Congress has not actually issued any law requiring ID checks. Gilmore's lawyer, James P. Harrison, argues that requirement hasn't been made public and is effectively a secret law. Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code, that ID requirements are prominently posted at airports, on the TSA website, etc., and that everybody in the courtroom (except Gilmore, who was signed in by his lawyer) had to show ID to enter the building.
[long section on the shortcomings of Gilmore's lawyer removed for space considerations]

On the courthouse steps after the hearing, one of the pro-Gilmore cranks (whose number I would estimate at about a score) spelled out the distinction Gilmore's attorney did not: That the Hiibel decision made a distinction between having to identify yourself verbally and having to produce a piece of identification, which constitutes a search. (I don't vouch for the details of any of this stuff, just that he seemed to have an argument.)

(Just so you know the jurisdiction fight has nothing to do about who is ordering the ID check, it's about a law that allows challenges to administrative orders to only go to an appeals court. Gilmore wants the case sent back down to a district court for a full trial, but contrary to Cavanaugh's assertion, the government does not want that at all. They want the Ninth to dismiss the case, but if the Ninth does think Gilmore has a case, they want the Ninth to decide it. They don't want a full trial -- they think the law explicitly says that can't happen. Waldman's point about the "legal fiction" was an ironic point since courts assume that every one should know a rule if it is in the federal code, even though its ridiculous to assume most citizens read the federal code. The irony here is that everyone knows you have to show i.d. at the airport, even though its not in the federal code, so Gilmore can't say he didn't know about the rule. And finally, the pro-Gilmore 'crank' Cavanaugh mentions is none other than Edward Hasbrouck, who knows more about the minutiae of airline travel laws and airline databases than just about anyone on this big, big planet.)

Full post.

Here's an excerpt from Hasbrouck's wordy, but perceptive and accurate, take on Gilmore's hearing:

The good news, as I read the tea leaves of the argument, is that it appears that John Gilmore and the cause he has taken up will eventually get their day in court, and may get it somewhat sooner rather than later: the 3 judges seemed inclined, if they rule that the case should first have been filed with them instead of with the district court, to order it transferred to their jurisdiction, rather than ordering it dismissed and making Mr. Gilmore start over from scratch in the circuit court.
[...]

I don't know if Mr. Gilmore was verbally asked, or stated, his name -- so far as I can tell, the record is silent on that point. But by presenting himself for transportation, and presenting those tickets as entitling him to passage, he was implicitly making a legally binding self-declaration as to his name and identity.

This case is not, therefore, about anonymous travel, an interesting but irrelevant side issue that was raised in this morning's argument. It's not about whether Mr. Gilmore could be asked for ID (he was, in effect, when he was asked to present a name-identified non-transferable ticket) or whether Mr. Gilmore could be sanctioned for failing to identify himself (he did identify himself).

The issue in this case is specifically about the legality of the search embodied in the demand for tangible evidence of identity, and the lack of due process embodied in the secrecy of the "rule" requiring production of ID credentials (whose existence, even today, government counsel would "neither confirm nor deny") and the lack of any publicly-disclosed criteria as to what evidence of identity is sufficient, or how its sufficiency is to be determined.

Full post.

By the by, this decision is looking to be very interesting.

The panel seems not very happy with the secret nature of the rule, but simultaneously doesn't seem persuaded by the argument that the rule is unconstitutional.

But their animosity for the former may move them for a more full constitutional challenge. I highly suspect the panel will take on this case and ask for more briefings or send it in front of the full panel of the Ninth. This stuff is way too interesting for these judges to give it back to a district court.

The other interesting angle is that if Gilmore gets the court to decide that the search part of the identification -or-search policy is an unconstitutional administrative punishment, then he also brings down the no-fly and selectee lists as unconstitutional administrative punishments..

Posted by Ryan Singel at December 11, 2005 11:00 PM

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Tracked on December 12, 2005 09:50 AM