FC: John Gilmore's suit over secret FAA regs in SF court on 1/17

From: Declan McCullagh (declanat_private)
Date: Tue Jan 14 2003 - 13:45:17 PST

  • Next message: Declan McCullagh: "FC: A criticism of John Gilmore's suit over secret FAA rules"

    Previous Politech messages:
    "Update on John Gilmore's lawsuit over secret FAA regulations"
    "John Gilmore sues Feds over secret your-papers-please rule"
    To: declanat_private, gnuat_private
    Subject: Air ID: Gilmore v. Ashcroft: Friday AM hearing in SF
    Date: Tue, 14 Jan 2003 05:08:22 -0800
    From: John Gilmore <gnuat_private>
    My case against John Ashcroft, TSA, and various other agencies will
    have its first hearing at 9AM on January 17, 2003 in San Francisco.
    You-all are encouraged to attend if you're nearby.  We'll be arguing
    about whether the case should be thrown out as invalid.
    I'm asking for a declaration from the court that would overturn the
    unconstitutional requirement that US persons must show ID to travel
    throughout the US.  Not only airplanes, but trains, buses, cruise
    ships, and major hotel chains are now enforcing ID requirements,
    largely at the behest of the Federal Government.  Many skyscrapers
    also demanded ID for a time after 9/11; I refused, and eventually most
    of them have relented.  I have not flown in the US since 9/11/01, and
    I've recently been refused lodging as well as travel, for my refusal
    to present ID on demand.  (Note that this is a *separate* issue from the
    government's recent demand for more information from citizens who enter
    the US border.  That's a bad idea too, but raises different issues.)
    We free citizens have not only a constitutional right to travel
    throughout the US without government-imposed restrictions, but also a
    constitutional right to refuse to identify ourselves to government
    agents unless there is probable cause to suspect us of a crime.  These
    aren't made-up issues.  There are many legal cases that uphold them in
    the last few decades, as well as more than a hundred years ago.  Read
    our reply brief for a guide to these cases:
    We citizens also have a right to know what the laws are that affect
    the general public.  There is no such law requiring IDs of travelers,
    and TSA won't publish their secret regulation that purports to require
    ID.  So nobody actually knows whether ID is required, in what
    circumstances, what kinds of ID are OK or not, what options people
    without ID have, etc.  (By nobody, I really mean nobody -- not even
    the people "enforcing" this "rule" know what the "rules" are.  Try
    refusing to show ID on your next flight, and when they tell you that
    you can't board, ask them what regulation requires you to show ID to
    board a plane.  I did this on July 4, 2002.  The resulting confusion
    of different answers from each person in authority would be very
    amusing if it wasn't an unconstitutionally vague infringement on the
    right to travel.)
    The government and airlines responded to my lawsuit with a motion to
    dismiss the case.  Here are their arguments: I can't challenge
    anything but the demand for ID, not what they do with it after getting
    it (thus I can't challenge or inquire into the "no-fly list" and other
    database lookups that *motivate* the demand for ID).  I can't
    challenge anything at all in this court, because the Courts of Appeals
    have exclusive jurisdiction over TSA orders.  The government need not
    publish a rule like this, because (1) TSA security directives are
    exempt from FOIA by statute, and (2) no other reason requires them to
    publish the law.  The airlines' "request" for ID does not infringe my
    right to travel, even if they don't let me travel when I "decline".  I
    can't challenge the ID demand on trains, buses, or cruise ships
    because I didn't actually go down and get rejected by a train, bus, or
    cruise line, even though their web sites told me I'd be rejected.  The
    First Amendment is not involved, even though I can't assemble with
    others, speak at conferences, or petition the government for redress,
    without traveling.  Anything they do to anyone in an airport is exempt
    from the Fourth Amendment if they claim it relates to "security".
    That's the short version; you can read the long version here:
    http://cryptome.org/gilmore-v-usa-fmd.pdf, and their later reply here:
    The government gave away their real motivation on the last page of
    their brief, though:
       "If a passenger refuses to provide or verify his or her identity,
        airline security officers cannot determine whether the passenger is
        among those individuals 'known to pose, or suspected of posing, a risk
        of air piracy or terrorism or a threat to airline or passenger
    In other words, the demand for ID is integral to building a dragnet.  They
    have a little enemies list of "suspected" "threats", and they need our
    ID to check us against the list.  (How you get on and off this list is
    dubious and secret, but many documented cases exist of innocents being
    harassed, searched, and denied boarding, due to errors in it.)  The
    constitutional catch is that the government can't set up a dragnet and
    demand that every passerby identify themselves -- not in airports, and
    not anywhere else unless there's an exigent emergency (e.g. a bank was
    just robbed down the block by someone matching our description).  A
    demand for ID is a search under the Fourth Amendment, and they have no
    probable cause to search us.
    We will argue that the case should not be dismissed, in the courtroom
    of Judge Susan Illston, on the 19th floor of the San Francisco Federal
    Building, 450 Golden Gate Avenue at Polk St, at 9AM on January 17, 2003.
    If you think airport security is out of hand, show up.  If you think
    Total Information Awareness is a terrible idea, show up.  (CAPPS 2 is
    the version of TIA they'll roll out in airports in 2003, and it all
    hangs on the demand for your ID.)  If you think John Ashcroft is a
    traitor to the Constitution he swore to uphold, show up.  If you think
    every "free" citizen should not be routinely treated like a suspected
    terrorist, show up.  Wear good clothes and be polite.  Impress the
    judge with the seriousness of your interest in these issues.  Oh yes,
    you'll have to show ID to get into the Federal Building.  That's
    unconstitutional too, but not the subject of this particular case.
    You can read all the case documents at:
    Thank you.
    	John Gilmore
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    Declan McCullagh's photographs are at http://www.mccullagh.org/
    Like Politech? Make a donation here: http://www.politechbot.com/donate/
    Recent CNET News.com articles: http://news.search.com/search?q=declan

    This archive was generated by hypermail 2b30 : Tue Jan 14 2003 - 14:39:01 PST