"Airport ID checks legally enforceable?"

Thursday, December 8, 2005

Airport ID checks legally enforced?
By Declan McCullagh
CNET News.com


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. 

John Gilmore 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 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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