December 08, 2005 | The Epic of Gilmore

Longtime Internet civil liberties activist and Electronic Frontier Foundation co-founder, John Gilmore, will have his day in court Thursday to argue against the constitutionality of a secret rule compelling airline passengers to show identification before boarding an airplane.

From my Wired News story from Wednesday:

Although John Gilmore lives just five blocks from San Francisco's Department of Motor Vehicles, his driver's license is expired. On purpose.

The outspoken, techno-hippie, wealthy civil libertarian doesn't want to give his Social Security number to the DMV.

Neither will he show his driver's license at airports, or submit to routine security searches. This refusal to obey the rules led him to file suit against the Bush administration (Gilmore v. Gonzales) after being rebuffed at two different airports on July 4, 2002, when he tried to fly without showing identification. One airline offered to let Gilmore fly without showing ID, but only if he underwent more intensive security screening, which he declined.

On Thursday, Gilmore and his lawyers will get 20 minutes in front of the 9th U.S. Circuit Court of Appeals to make their argument against identification requirements and government secrecy, in a case that time and shifting public opinion has transformed from a quirky millionaire's indignant protest into a closely watched test of the limitations of executive branch power.

"The nexus of the case has always been the right to travel," Gilmore said. "Can the government prevent Americans from moving around in their own country by slapping any silly rules on them -- you have to show ID, you have to submit to searches, you have to wear a yarmulke?"

Gilmore has sunk thousands of dollars into fighting identification requirements, but he also personally committed to not traveling in the United States if he has to show identification.

So Gilmore has not taken a train, an intercity bus or a domestic flight since July 4, 2002. He still flies internationally.

Gilmore describes himself as being under "regional arrest," and said he would love to drive and fly again.

"I'm a millionaire," Gilmore said. "I can do whatever the fuck I want, right? Why should I run around without an ID? Because no one else was paying attention to that and letting our liberties slip down the drain. I figured it was worth some amount of money and some amount of personal sacrifice to keep a free society."

Regardless of your take on the necessity or usefulness of showing identification, the questions Gilmore's case is raising about government secrecy are intriguing.

Here's what Abraham Sofaer of the Hoover Institution has to say on his nascent SofaerBlog.

I hope Sofaer will excuse me for quoting him at length:

Those of you who follow privacy issues obsessively will probably have seen John Gilmore’s website, a standard boilerplate PANIC NOW privacy advocate website. What interests me is DOJ’s argument here claiming that 49 U.S.C. 114(s)(1)(C), which prohibits disclosing information “developed or obtained in carrying out security” together with 49 CFR 1520.9(a)(1), enable TSA to enact a secret rule requiring ID to be shown when boarding an aircraft simply by issuing such a rule and then declaring that rule’s existence to be sensitive information.

The judge denied the DOJ motion to file its brief in camera and ex parte (ed. note. in camera means in the judges chambers and ex parte means without Gilmore's la, and so DOJ filed a brief in the case that assumed that ID requirements do exist, rather than provide documentation on whether that is the case. Here is a choice quote from that brief: “First, there is an administrative record, namely, the TSA security directive alleged by plaintiff.” (emphasis mine) Lawyers can say things like that with a straight face. The brief argues in part that the ID requirement is a law enforcement technique, not a law in itself, and therefore it does not need to be published in a codified form.

The interesting part of the whole thing to me is how insistent TSA is about not releasing official text of the ID-or-search rule. It’s not clear how such a rule could be a secret in any meaningful sense of the word. The argument put forward by DOJ is that it is analogous to catching drug traffickers, where the investigator properly does not wish to reveal his criteria for where to focus investigative attention. Since the ID requirement is (alleged and assumed to be) uniform, I can’t see how that applies. It seems to me that TSA wants blanket authority to make secret and globally-applicable regulations, with review to be done only by appellate courts, and only under seal.

On December 8th we will find out whether congress has given them that authority.

Posted by Ryan Singel at December 8, 2005 12:11 AM

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Posted by: kuzinov at December 10, 2005 10:32 AM