Airport ID checks legally enforced?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Dewayne Hendricks <dewayne () warpspeed com>
Date: December 12, 2005 4:32:17 PM EST
To: Dewayne-Net Technology List <dewayne-net () warpspeed com>
Subject: [Dewayne-Net] Airport ID checks legally enforced?
Reply-To: dewayne () warpspeed com

Airport ID checks legally enforced?

By Declan McCullagh
<http://news.com.com/Airport+ID+checks+legally+enforced/ 
2100-7348_3-5987820.html>

Story last modified Thu Dec 08 12:40:00 PST 2005

SAN FRANCISCO--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.

A three-judge panel of the 9th Circuit Court of Appeals seemed  
skeptical of the Bush administration's defense of secret laws and  
regulations but stopped short of suggesting that such a rule would be  
necessarily unconstitutional.

"How do we know there's an order?" Judge Thomas Nelson asked.  
"Because you said there was?"

Replied Joshua Waldman, a staff attorney for the Department of  
Justice: "We couldn't confirm or deny the existence of an order."  
Even though government regulations required his silence, Waldman  
said, the situation did seem a "bit peculiar."

"This is America," said James Harrison, a lawyer representing  
Gilmore. "We do not have secret laws. Period." Harrison stressed that  
Gilmore was happy to go through a metal detector.

Gilmore sued the federal government after being told he could not fly  
without ID from Oakland, Calif., to Washington, D.C., which he said  
he was doing to exercise his First Amendment right to petition the  
government for a redress of grievances. U.S. District Judge Susan  
Illston dismissed (PDF) his case in March 2004, ruling that Gilmore  
had "numerous other methods of reaching Washington."

Oral arguments on Thursday, which lasted about 40 minutes, returned  
repeatedly to that point. Judge Richard Paez suggested that when your  
ID is requested at an airport, "You can always leave."

Waldman, the Justice Department attorney, said that as long as no  
commercial airline flight is required, Americans "can assemble  
wherever they want. They can petition wherever they want." He added,  
"I'm not aware of any right to travel anonymously."

Two cases that were mentioned on Thursday could provide a glimpse  
into how the appeals court will rule. In one, decided in 2004, the  
U.S. Supreme Court ruled 5-4 that police could arrest anyone they  
stopped who refused to show ID. In the other, U.S. v. Davis, the 9th  
Circuit said in 1973 that airport searches were permissible as a form  
of administrative screening.

It's unclear what will happen next. Because of a procedural twist  
involving lawsuits against federal agencies, the district court  
concluded that only an appeals court enjoys authority to resolve some  
aspects of the dispute. But the 9th Circuit judges also could, if  
they side with Gilmore, send the case back to the lower court for a  
full trial.

On the courthouse steps after the arguments, Gilmore said he felt  
confident about the case and welcomed a verbal concession from the  
Justice Department. "I was glad the government admitted it was  
'peculiar' and Orwellian to make secret laws," Gilmore said.

The Justice Department has said it could identify the secret law  
under seal, which would be available to the 9th Circuit but not  
necessarily Gilmore's lawyers. But any public description would not  
be permitted, the department said.

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