Gilmore v. Ashcroft -- FAA ID challenge FAQ


John Gilmore
gnu@faaid.toad.com

Written July 18, 2002
Last updated June 30, 2003

Q.  Why are you challenging the ID requirement?

Before I answer that question, may I see your papers, please?  Mind if I check a secret dossier on you, and do some web searches on you? Didn't you plead guilty to marijuana possession in 1983?  Wasn't that you who wrote a piece critical of the first Bush Administration, too? You have more than five outstanding parking tickets; we'll seize your car out in the lot.  Oh, and you are due for an IRS audit soon; you seem to be flying a lot more than your reported income would support.

If you refuse to provide your government-issued papers, or permit the search, then you can't ask me any questions.  That's the rule.  No, you can't see where the rule is written down, that's secret.

Q.  Why are you challenging the ID requirement?

People in the US have a right to travel and associate without being monitored or stopped by their government, unless they are actually suspected or convicted of a crime, and unless that suspicion is reasonable.

Clearly it is not reasonable to suspect every American of being a criminal bent on hijacking an airplane.  There is no evidence against the vast majority of Americans, and there is a multitude of evidence that most people harbor no desire or intent to hijack airplanes.  Yet American travelers are being identified, tracked, and searched nevertheless.  This policy violates decades and centuries of court decisions about the rights of innocent Americans.  The mere demand for an ID is a search, which the Fourth Amendment protects us from.

The ID requirement is not part of any law passed by Congress, or any regulation published by the Executive Branch,   yet somehow it is being imposed on every traveler.  The USSR was full of "secret" laws and directives, which abrogated the fundamental rights that had been written in the published laws and constitution.  I believe that a law which the government is unwilling to publish cannot be enforced, and there are many lawyers who agree with me.

Q.  If you succeed, what do you hope to accomplish?

I hope that I and everyone else in America will once again be able to travel without being forced to identify themselves.

I hope to prevent the government from imposing secret "decrees" on Americans without actually publishing them as laws or regulations.

I also hope that by succeeding, I'll help redirect government anti-terrorism efforts away from "feel-good" measures that don't actually help, such as ID checks, religious or cultural profiles, and confiscation of tweezers, into measures that are more likely to protect us.

Q.  Who, what, when, where, why?

Who:  John Gilmore

What: Sued the federal government and airlines for preventing him from traveling without ID, and for enforcing a secret law

When: July 18, 2002

Where: San Francisco, CA, federal district court

Why:  An inexplicable post-9/11 belief in constitutional rights

Web:  http://freetotravel.org/

Q.  Where is your web site?  Where can I get copies of your legal filings?

http://freetotravel.org/

Q.  Who are your lawyers?

Bill Simpich of Oakland is the lead attorney.  James Harrison and A. Michael Froomkin are co-counsel, and Lee Tien of the Electronic Frontier Foundation is assisting.

Q.  Isn't an ID check needed to stop known terrorists from flying?

If we knew who the terrorists were, we could just arrest them all, rather than stopping them when they try to fly.  So what do you mean by "a known terrorist"?  A previously convicted hijacker?  A card-carrying member of Al-Queda?  A Green Party member, who seeks to change our established form of government?  Someone on probation, convicted of non-violent civil disobedience for protesting the Star Wars program at Vandenberg Air Force Base?  A member of Earth First!?

There is good reason to believe that any list of "known terrorists" contains "suspected" terrorists, not actual terrorists, and is full of errors besides.  Particularly when the list is secret and neither the press nor the public can examine it for errors or political biases.

"Johnnie Thomas" was on the watch list because a 28-year-old "FBI Most Wanted" man, Christian Michael Longo, used that name as an alias.  But Longo was arrested two days after joining the "Most Wanted" list for murdering his family.  After he had been in custody for months, 70-year-old black grandma "Johnnie Thomas" gets stopped every time she tries to fly.  Her story is in the May 2002 issue of New Yorker magazine.  It's not clear why an ordinary criminal like Longo was on the list in the first place -- nor why he wasn't removed from the list when he was captured two days later.  What is clear is that this secret watch-list is poorly controlled and ripe for abuse.  And, of course, there is no guarantee that an actual terrorist would be carrying their real ID.

There are many ways to deter terrorism, but checking IDs against a watch list is not one of them.  It is an exercise in futility that provides a false sense of security.

Q.  So then how should we figure out who is a terrorist?

It's a good question, that goes to the heart of the post-9/11 civil liberties issues.

Who is a terrorist?  Any IRA member from the last twenty years?  A member of the Irgun (led by former Israeli Prime Minister Menachem Begin)?  Nelson Mandela, imprisoned for sabotage for 27 years by the South African government?  A WTO protester?  The US Government killed more Afghani civilians in the last year than the number of US people killed on 9/11; does that make US soldiers terrorists?  Israel and Palestine both claim that the other is terrorist.  So do India and Pakistan.  So do leftists and rightists in Colombia.

Ultimately the line between "terrorist" and "freedom fighter" is a political one.  Our freedom to travel should not depend on a politician's decision about whether they agree with our aims or not. Every "anti-terrorist" measure restricts people based on their politics, not just based on whether they use violence.  Violence was already illegal.

In other words, any list of "terrorists" will inevitably contain many individuals that have never committed a terrorist act, and not contain many individuals that have actually committed a terrorist act.

Q.  Won't elimating ID checks make air travel more dangerous?

No.  First, air travel is far less dangerous than driving a car or riding a bicycle.  This includes the danger from terrorist incidents as well as the much more common mechanical problems and human errors.

A car is dangerous because it's a heavy mass of metal moving at high speeds compared to what is nearby.  The energy in that motion can easily crush humans (either inside or outside the car), or other objects like trees, buildings, or cars.  Safely using a car requires the application of good human judgment every second.  Whenever that judgment is missing (unconscious driver) or poor (intoxicated, enraged, or suicidal), then a car is a danger to those in and around it.

An airplane is dangerous because it's a "car" with much more mass, much higher speeds, the ability to move in three dimensions instead of two, and carrying a much greater load of high-energy material (gasoline).  Commercial air travel has been safer than car travel only because of rigorous professionalism, having co-pilots always ready to take over, and safety precautions far exceeding those of amateur-operated cars.

The 9/11 hijackings made it clear that those safety precautions did not keep the pilots in control of the plane.  What makes air travel particularly dangerous is that all law-abiding passengers and crew have been disarmed.  It's clear that when passengers realize the deadly goals of hijackers, they have the courage to attack the hijackers, with their bare hands if necessary.  But we would all be safer if the honest passengers had weapons as good or better than the weapons smuggled aboard by hijackers.  There is plenty of anecdotal evidence that even with today's stricter security screening, many honest people accidentally bring weapons onto airplanes, and are not detected.  If honest people can do it, so can hijackers -- and unlike the honest people, they'll use their weapon to seize the plane.

My philosophy is to "educate and then trust the general public".  This philosophy is in line with the basic values of democracies.  The government's approach to homeland security is "keep everything secret and trust nobody".  This is in line with the basic values of authoritarian governments.

Q.  But it makes me feel safe to show my ID in airports.

Please show your ID to whomever you want, whenever you want, if it makes you feel good.  But personally, it makes me feel UNsafe whenever a government bureaucrat asks me for my ID, whenever guards search me, when I see government-sponsored teenagers in camouflage holding automatic weapons.  I don't feel like I live in a free country.  It makes me think I live in a totalitarian state, where I will soon need the permission of the government to think, to write, to speak, to move from place to place.  Where I can be searched whenever some petty functionary wants to search me.  Or worse, where a small entry in some secret database will restrict my movements or my other rights, without anyone I meet being able to do anything about it.

Q.  No, I mean it makes me feel safe that *everyone* has to show ID to get on a plane.

The people who hijacked the planes on 9/11/01 also showed their IDs. Professional terrorists have great access to fake IDs.

Feeling safe is not the same thing is being safe.  If the danger is still there, a feeling of safety actually hurts your safety, because it lulls you into ignoring the danger.

Q.  Won't terrorists be able to get on planes if nobody has to show ID?

Again, it depends on how you define a terrorist. 

A person who has committed a crime like bombing, but who has not been caught, may be able to get on a plane, just as they can walk the streets, board buses and trains, drive cars, and otherwise participate in life.

We could stop everyone who goes through an airport just to check whether there is an oustanding warrant for them.  However, many courts have ruled that the government cannot set up "roadblocks" or "checkpoints" and stop everyone who passes, merely to catch the tiny minority who may have done something wrong.  The rights of the many override the desire to catch the few.

A person who has committed no crimes, but who is "suspected" of harboring terrorist intentions, can be a valid target of our law enforcement agencies' interest.  But again, the courts have correctly ruled that we cannot stop and search every innocent person just to find these "suspects".

Clearly there is a balance to be struck between the rights of the millions of innocents and the desire to catch (or stop) the few guilty.  Our society has grappled with this balance for many years; the question is not a new one.

"Terrorists" are clearly not just dangerous in airports.  They could be blowing up chemical plants, mailing biological warfare agents, poisoning drinking water, or destroying other critical infrastructures such as dams, tunnels, bridges, and cables.  Terrorists armed merely with their hands or with cars could assassinate our leaders and thinkers and doers.

Yet our society has never put up with checkpoints on roads or urban sidewalks, arbitrary searches of people or houses, or other means that would search millions of innocents to catch these people.  And for good reason.  Societies that arrogate the right to search their citizens at any time, tend to believe that the citizens must answer to the government.  In a working democracy, the government must answer to the citizens.

Q.  So you say a demand for ID is a search under the Fourth Amendment. Are you trying to get rid of all the searches in airports, like at the X-Ray machines?

In this case, we are not challenging the X-ray machine searches, we are only challenging the ID requirement and the secret directives.

Q.  Aren't Southwest and United merely private companies refusing your business because you aren't doing business the way they want to do it? That seems legal to me.

Airlines are heavily regulated by the government. So far, every case relating to airport security has treated the actions of the airline employees as being equivalent to acts of government, e.g. they have to follow the Constitution. Thus, they can't say "You can't fly with us unless you consent to whatever kind of search we demand". The case law is very clear: only searches limited to finding weapons and explosives are allowed, and to no greater extent. Anything beyond that violates the Fourth Amendment. There is no probable cause to suspect every person in an airport of committing a crime.

The airlines are treated this way by the courts largely because the government really IS pulling the strings behind the scenes, telling the airlines what they can and can't and must do. Remember all those signs in the airports saying "The FAA requires passengers to show ID"? It turns out that they're lying -- neither Congress, FAA nor TSA has ever published a law or regulation requiring passengers to show ID. But it is true that there's a secret government order to the airlines, that makes them ask for (and/or demand) your ID. I sent them a FOIA request for it, and they acknowledged the existence of these orders, but wouldn't release them. It's the same with the x-ray machines and the shoe searches and all the rest; it all comes from the government, as orders which the airlines must follow, but which the public cannot ever see.

There's a separate reason why the airlines are liable even if the above wasn't true. Southwest and United are common carriers. They're required to take anybody who shows up and pays the published fare. Why would such a business need to know who its customers are? Their license to operate as a common carrier doesn't let them pick and choose who they'll permit to fly.

Then there's a third thing. The airlines are selling a commodity, but they hate to price it that way. Businesses who did (like People Express) were outcompeted by ones who made tricky pricing schemes. So the whole industry has tried to tie customers to particular tickets and particular times and dates, penalizing them on price if they want changeable tickets, and only selling re-sellable tickets to "consolidators", not to the public. If you buy a bus pass for transit in your town, you can give or sell that bus pass to someone else and there's nothing illegal about it. Your name isn't even on it. Same with theatre tickets, for another example. The bus company isn't trying to charge you $1 for the seat and sell the next seat over to somebody else for $10. But that's what airlines have been doing for years.

Until 1996, no airline required that people show ID so they could check that the name on the ticket matched the name on the person. Every airline was afraid that as soon as it enforced such a policy, lots of customers would switch to some other airline. In other words, a competitive market would be operating correctly. So instead they banded together and got the FAA to order ALL of them to check IDs. Suddenly there's nowhere sane for the consumer to turn, so no airline loses any business and none is tempted to break ranks to gain business (which is how most cartels fall apart).

Q.  Are you challenging the criteria for profiling travelers?

In this case, we are not challenging the criteria that the FAA and TSA use to profile travelers and select them for special attention, except to the extent that the system relies on a demand for identification, or relies on secret directives.  This case is not about racial or ethnic profiling.  It is about the unconstitutional demands being placed on every traveler, whether or not they "fit the profile".

Q.  Do people really have the right to travel?

Yes, Americans really do have the right to travel.  Neither the federal government nor the states can prevent a US citizen from going anywhere in the US.  Nor can they discriminate against  people who move around in the US.

The right to travel (called the right of free ingress to other states, and egress from them) is so fundamental that it appears in the Articles of Confederation, which governed our society before the Constitution.  In 1869, the Supreme Court said, "[W]ithout some provision of the kind...the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists." (Paul v. Virginia).  A hundred years later, Justice Stewart wrote, "[T]he right to travel freely from State to State ... is a right broadly assertable against private interference as well as governmental action.  Like the right of association, it is a virtually unconditional personal right, guaranteed by the Constitution to us all." (Shapiro v. Thompson).

The courts have upheld some limits on international travel, such as the embargo on Cuba, but have regularly struck down limits on travel within the United States -- even indirect limits like different welfare benefits for recent immigrants.

Q.  Do people really have the right to anonymity?

Yes.  People going about their lawful business cannot be compelled to identify themselves.  And this protection extends even further when the people are engaged in activities protected under the Constitition.

For example, anonmyous publishing and pamphleteering has been upheld in many Supreme Court cases.  In Talley v. California (1960), the Supreme Court threw out an ordinance that required the distributor of flyers to print their name and address on them. The Court stated that "It is plain that anonymity has sometimes been assumed for the most constructive purposes." 

The Supreme Court explicitly recognized the value of anonymity in the context of freedom of association in NAACP v. Alabama ex rel Patterson (1958), a case in which the NAACP refused to turn over its membership list, to protect the members from being harrassed.  In that decision the Court held, among other things, that to require individuals to step forward and be identified to assert their free-association rights would be, in effect, to negate those rights.

The Federalist Papers explained the justification for the American Revolution.  They were written anonymously, published with pseudonyms.

The Supreme Court has upheld anonymous publication virtually every time it has considered the question.  The most recent such case was decided on June 17, 2002 (Watchtower v. Village of Stratton).  In that decision they said, quoting a previous decision, "...there are a significant number of persons who support causes anonymously.  The decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible."

Many other courts have decided similarly.  The Colorado Supreme Court decided in 2002 in the Tattered Cover case that people who buy books have a right to anonymity, even when the government has a legitimate law enforcement interest in who the buyer was.  They refused to let a district attorney subpoena the name and address to which a purchased book was mailed.

Q.  Isn't anonymity bad?

People can use anonymity for bad things, but they can use other rights for bad things too.  You can use free speech to say hurtful things. You can practice religions that make you cruel and intolerant.  You can commit a crime and then avoid torture that would make you confess. You can petition the government to build a police state run on Oracle servers.

But those are all minor harms compared to what would happen if we were not free to do those things.  Many governments (past and present) imprison their citizens for speaking out against the government, or for merely seeking out information that the government disapproves of. Many governments impose a state religion and are not tolerant of unbelievers.  Many governments do torture people.  And many governments do run police states that track and potentially block their citizens' every move, every plane flight, every email, every web site, every publication.

Acquiesing to a demand that people in the US identify themselves to publish, to associate, to buy, to work, or to fly, would encourage evil people to seek the reins of government power.  Because once politicians or bureaucrats can track what all the citizens are doing, saying, where they are going, and who they are meeting, the powerful can "outlaw their opposition", by quietly arresting them, or merely by making it harder and harder for the opposition to communicate, travel, work, or live.

Q.  Do people really have the right to travel anonymously?

There hasn't been a Supreme Court case yet that directly asked the question of whether Americans have the right to travel anonymously inside the United States.  We believe that people do have that right, and hope that the courts will choose to say so.

Q.  Why is anonymity so important to you?

Anonymity is important because it is a practical way to avoid many forms of illegitimate power.

If you buy your groceries with cash and never give your name, it's harder for the store to sell your purchasing habits to anyone else. It's harder for the FBI to tell what books you are buying, or who you are meeting for dinner, or where you are flying, or who you are flying with, if you don't give out your name when you do those things.

For example, the Census Bureau helped the US Government round up all the Japanese-Americans during WW2, by telling them how many Japanese lived on each block of each town in the US.  If those people had had the sense to not fill out their Census Bureau forms, they would not have spent years illegally jailed.

Living anonymously is a small, personal choice that powerless people can do to protect themselves from powerful organizations.  That is why so many powerful organizations want to eliminate anonymity.

Q.  Why is anonymity so important to the right to travel?

Most travel is for meeting other people.  I fly to see my family, you fly on business, she flies to meet her best friend, he flies for a romantic vacation with his sweetheart, she flies to a conference, they fly to a political event.  Meeting with people is part of "free association", which just means being free to associate with whoever you want to.

Undemocratic governments traditionally try to prevent people from associating anonymously, because most credible challenges to government policies occur from groups of people who meet and agree to work together.  Racist Southern states passed laws 50 years ago to require the National Association for the Advancement of Colored People to give its membership list to the state -- so that the members could be harassed or killed by Ku Klux Klan members who were often local racist politicians and law enforcement officers.  The Supreme Court struck down those laws.  The NAACP was able to gather broad support for changing our racial policies, and we had a relatively peaceful transition to a much less racist society.  These racist governments wanted to scare people away from joining the reform movements, either by harassing existing members, or by making people afraid to join.  If they had gotten their way, we would still have terrible racial policies, or the people most affected by those policies would have had to resort to violence to get the policies changed.  If the government had a database tracking the movements of NAACP leaders and those who attended its rallies and events, then the government could harass the organization without ever getting the membership list.

In addition, the First Amendment gives us the right to petition our government for redress of grievances.  We can petition anonymously, and sometimes we must, when seeking to change draconian laws that the government would like to apply to us.  A small number of the people who protested the WTO in Seattle were violent, but that is no excuse for seeking to identify WTO protesters in general, or to prevent them from traveling to the next anti-WTO protest.  If the government could track everyone who flew to Seattle that week, and mark them as suspected terrorists, then their freedom to anonymously petition would be violated.

As Americans, we are pretty smug about our freedom; we don't even think about how we would take it back if suddenly a planned demonstration or political meeting was "canceled" because 90% of the attendees had been mysteriously stopped from flying or driving or taking the train or bus to attend.  But the "transportation security" system and the profiling and databases behind it are all poised and ready to do exactly that.  All it will take is a bureaucrat or politician who says "Do it", because all the mechanisms will already be built.  It was only 60 years ago that hundreds of thousands of Americans were imprisoned solely for their Japanese cultural heritage. Only 40 years ago that anti-war and civil rights protesters were bugged, followed, smeared, arrested, impersonated, and disrupted by the supposedly lawful government.  Only 30 years ago that a Republican President was bugging the Democratic National Committee.  Only ten years ago that our prison population was half what it is today, with the increase coming from imprisoning black and Latino innocents over victimless crimes like drug use.  Only two years ago that a Presidential election was close enough to warrant fraud investigations.  I'm not talking about a banana republic somewhere else; I'm talking about our own country.  Abuse of government surveillance, and suppresison of unpopular minorities, are documented facts right here in the US, not unrealistic or remote fears.

Q.  How much extra time is spent by Americans due to post-9/11 airport security measures?

In 2000, scheduled air carriers carried almost 632 million passengers. (http://www.bts.gov/publications/airactstats2000/tables/AirportTable1.htm) If the same number of passengers fly in 2002, but instead of arriving at the airport 30 minutes before their flights, they arrive 2 hours before their flights, those passengers will have collectively spent more than 100,000 years sitting uselessly in airports or standing in line to be searched.

Contrast this to the lost lives of the people who died in the 9/11 attacks.  If each of the approximately 3,300 people who died lost 35 years that they would have otherwise lived, then in total they lost about the same amount of time.  Government-imposed searches waste as much life every year as the lifetimes that the attack wasted.

Inconveniencing hundreds of millions of innocents, trying to catch dozens, or save thousands, RAISES the costs to society, rather than lowering them.  Another way to think about it is that if we did away with the increased "security" and went back to letting people catch planes on 30 minutes' notice, we would gain back as much time every year as was taken from our citizens in the 9/11 attacks.

Q.  Is EFF involved in this lawsuit?

No.  John Gilmore is a co-founder of EFF, but his life includes many things besides EFF's work.

EFF is working on copyright policy, wiretapping, computer security, freedom of speech, online anonymity, and other issues.  EFF has taken no particular stand on the requirement that people show IDs to fly. EFF has come out against many of the intrusive technological searches proposed for airports, such as their 1998 comments to the FAA about CAPPS: http://www.eff.org/Privacy/ID_SSN_fingerprinting/opposing_faa_rule_14_cfr.html

Q.  Is ACLU involved in this?

No.  We think that ACLU opposes secret law in all its forms, and that it would also applaud a ruling that passengers cannot be required to present ID to travel within the US.  But ACLU is putting substantial efforts into challenging other forms of antiterror overreaction, including opposition to the secret incarceration of innocents, inhumane treatment of POWs, "trusted traveler IDs", and "National ID" cards.  See http://www.aclu.org/issues/privacy/National_ID_Feature.html and http://www.aclu.org/issues/privacy/hmprivacy.html .

Q.  Isn't ACLU defending the security screeners who currently demand IDs?

Yes, the ACLU's Northern California chapter is.  But their issue is whether non-citizens who are legally working in the US can be denied these jobs -- not whether the job itself should involve demanding IDs from people.

Q.  Where does EPIC stand on this?

The Electronic Privacy Information Center has been working on air travel privacy and anonymity issues for many years.  See http://epic.org/privacy/faa/.

Q.  Who else supports this effort?

The First Amendment Project opposes the tracking of citizens' associations and petitions.  This tracking depends on "identifying" travelers, by making them show an ID.  David Greene and Jim Wheaton of the First Amendment Project in Oakland, California are interested in exploring these issues.  Their web site is http://thefirstamendment.org.

Privacyactivism.org has been researching the CAPPS I and CAPPS II traveler profiling systems, particularly with respect to the databases and profiles that drive them.  They are working with us on this issue.

Q.  How long has this anti-ID effort been going on?

John Gilmore has been opposing ID requirements for flyers since they were instituted in the mid 1990's.  He collaborated with several others in seeking to discover what these secret requirements said, including Robert Ellis Smith of Privacy Journal, Richard Sobel of Harvard, and Sam Weiler, a graduate student at Carnegie-Mellon University.  These efforts resulted in the FAA apparently modifying its secret orders, making it clear that travelers were permitted to fly without identifying themselves.  (However, airline personnel were still encouraged to lie to passengers by claiming that the FAA requires showing ID, even though it didn't.)

John actively refused to show ID for various flights, sometimes being refused passage and sometimes being permitted to fly.  In 1996, he was arrested at the San Francisco International Airport while protesting yet another useless and intrusive "security" measure.  He told the guards at the X-ray machine that they could turn on his laptop computer, but refused to turn it on himself.  John told them that "If they want to make a police state, he would not do it for them; they were going to have to do the work".  The guards called police, who unconstitutionally demanded that John identify himself or be arrested. After being handcuffed, searched and jailed for hours, he was given a ticket for "Interfering with or Delaying an Officer in the Performance of their Duties".  The District Attorney declined to prosecute the case.

John has not flown since September 11, 2001.  Until July 4, 2002, he refused to even try to fly, anticipating an unconstitutional demand for ID or an unconstitutional search.  On Independence Day, he attempted to fly on two airlines, politely declining to provide an ID and declining to be intrusively searched.  Neither airline would let him fly.  He then filed this court case.

Q.  What is the history of ID requirements in air travel?

Before 1995, there was no requirement to identify yourself in order to board an airplane.  (Somehow the world got along anyway.)

In 1994, the FAA started a research and development project for a computerized passenger profiling system.

On July 17, 1996, TWA Flight 800 exploded shortly after takeoff from Long Island, killing all 230 people on board.  Eighteen months later, the FBI concluded that there was no evidence that a bomb or missile destroyed the plane.  In 2000, the National Transportation Safety Board finally ruled that an explosion in the center fuel tank caused the crash, probably due to a spark igniting gasoline vapors in the near-empty tank.  Despite the ultimate conclusion, the government jumped forward in 1996 with plans to build computerized air traveler profiling systems.

The Washington Post reported on August 31, 1996:

The FAA has supported research and development work on computerized profiling since February 1994, and is now funding a development project with Northwest Airlines.

Virtually the entire federal law enforcement and intelligence establishment has participated in developing the criteria for a database, Flynn said.

Since the TWA crash "we have been accelerating the hell out of it," Flynn said, predicting development work could be completed within months.

But even then, he said, "there are a whole variety of constitutional and legal questions that will still have to be resolved before this can go forward."

Apparently those constitutional and legal questions were never resolved; they merely installed the system anyway, and required all airlines to use it on passengers who check baggage.

After 9/11, the FAA reportedly required that the system be used on all passengers, not just those who check baggage.  Then, Congress passed the Aviation and Transportation Security Act, which was signed into law on November 19, 2001, federalizing the entire airport security infrastructure.  This created the TSA (Transportation Security Administration), which we believe is currently administering the ID requirement.

Q.  Can't anonymous people travel in other ways?

There are few other ways to travel long distances without ID, and they have been disappearing lately.

Walking or riding a bicycle still works over local distances.  But you can't walk or ride a bicycle along major highways, and it is quite inconvenient for traveling long distances.

Most city transit systems do not require ID.

Since 9/11, Amtrak now requires ID on many of its routes, and it is the only long-haul passenger train service in America.

Driving your own car requires a government-issued license, which must be shown to any policeman upon request.  Renting a car also requires showing such a license.  However, you can still ride in a car driven by a friend, without being forced to show an ID.

Hitchhiking is prohibited in most locations.

There is a single nationwide bus service today (Greyhound), which absorbed the other national bus system (Trailways) some years ago.  I have seen a friend be refused passage on Greyhound because they lacked an ID.  The Greyhound web site currently claims that they do not require ID, but this could change under orders from the Transportation Security Administration at any time.  Also note the recent 2002 Supreme Court case, which decided that passengers inside a bus, who are surrounded by three policemen in a limited space, are voluntarily consenting when they don't actively oppose a policeman who demands to search their bags or their clothing.

I have heard that rich people can rent private jets without using ID.

Q.  Isn't this lawsuit an overreaction to the ID demand?

The government has been tightening its demands that travelers identify themselves and submit to other searches for most of a decade.  They have shown no indication to restore the rights that US citizens are guaranteed.  History shows that bad laws are seldom fixed until courageous citizens challenge them.  This small lawsuit is such a challenge.

Q.  Is the ID demand an overreaction to 9/11?

No.  It's an overreaction to the Unabomber, to TWA 800, to the Pan Am flight that blew up over Lockerbie, to 9/11, and to many other events. The government's desire that every citizen identify themself is not new.  What is new is the sheeplike way that citizens are letting themselves be led to the slaughter.  We need not go back to World War II Germany to find governments that track their citizens' movements and ultimately imprison or kill those who they disagree with.  South Africa and China provide more recent examples.

Q.  How can the airlines and government protect against hijacking without identification checks?

What happens in the air is most important to protecting against hijacking.  Building strong cockpit doors that will resist the entry of hijackers is clearly useful, and is being done.

Teaching law-abiding citizens how to defend themselves is another useful measure.  Though gun-control advocates have problems with permitting honest citizens to be armed, all of us can agree that courageous passengers and crews can prevent hijackings, even when unarmed.  Even early on the morning of 9/11, once the passengers in the fourth plane figured out that they were aboard a flying bomb, they knew what they had to do, and they did it.  I doubt that future efforts to seize a plane and fly it into a particular place would succeed, now that all the honest passengers know that the safest thing they can do is to risk their lives to stop a hijacking in progress. In that sense, the government's previous teachings about hijacking (to maximize their survival, passengers should comply quietly) was the biggest single factor in making the 9/11 attack so deadly.

Q.  Is it OK to have people's names on airline tickets, or should they be anonymous like commuter tickets on buses and trains?

Anonymous tickets clearly work in many contexts without causing any social problems or "security issues".  These include concerts, theatres, transit passes, sports games, movies, festivals, road tolls, national parks, intercity buses, and lotteries.  There is nothing in particular about airlines that makes them different, except that they are heavily regulated by a Federal agency that chose to impose these ID requirements.

Anonymous tickets used to work quite well for airlines, even in the days when plane flights were much more expensive than today.  I flew on the east coast Shuttle flights that ran every hour and took as many passengers as showed up.  I flew on People Express, which did not take reservations, and which actually collected the ticket money while in the air.  Even in the early 1990's, "open tickets" were common in air travel.  Everyday tickets didn't include the first name of the passenger until the late 1990's.  People frequently swapped tickets with friends, or sold them, since even in the heyday of American hijacking ("to Cuba"), there was no requirement that you have ID that matched your ticket.

Airlines would clearly like to have passengers and middlemen unable to sell plane tickets if their travel plans change, because the airlines now charge a premium (up to the full price of the ticket, in some cases) to change your ticket or sell it to someone else.  And they want to charge outrageous prices to people who buy tickets at the last minute, which would not work if other passengers were free to sell their tickets to a last-minute buyer instead.  But that concern for airline profit has nothing to do with security.

There is a minor value to passengers in having their names on tickets; if they are physically lost or stolen, it simplifies preventing the thief from using the tickets, if the theft is reported soon enough.

The convenience of Electronic Tickets requires that there be a way to match up the person who paid for the ticket, with the person who comes to the airport to collect it.  But that could be done in any number of ways that would not require identification -- such as issuing a long, hard-to-guess number to each ticket, like today's "Record Locator" numbers.  The passenger (or someone to whom they had sold the e-ticket) could merely provide the number when they show up for the flight, as an alternative to showing their credit card.

Q.  But don't we have to put up with infringements of rights during wartime?

There are two sides of this.  First, what rights do we have during wars? And second, are we in a war?

The Constitution is the founding document of our society.  It provides for a single exception during wartime:  that the right of Habeas Corpus can be suspended by the President during wartime.  All of our other rights continue to exist -- on paper.

Of course, no paper document can keep the peoples' rights safe; the people themselves must uphold their rights.  Thus when Japanese-Americans were interned in World War 2, the populace did not rise up to defend the people whose rights were being violated.  A few Japanese-Americans, most notably Gordon Hirabayashi, went to court to defend their rights. Unfortunately, cowardly or unwise judges, all the way up to the Supreme Court, allowed these hundreds of thousands of innocent people to be imprisoned.

Today's Secretary of Transportation, Norm Mineta, who is responsible for these secret regulations that unconstitutionally deprive millions of Americans of their rights whenever they fly, was one of those interned Japanese-American people.  Yet even he has been unable to turn the tide against hateful and authoritarian officials like John Ashcroft, Dick Cheney, and George Bush.

Since the general populace is acting like sheep or lemmings regarding these demands for ID and searches, it falls to a few brave or foolhardy people to challenge the validity of the policy in court. I'm one of those people.

As for whether we are in a war: Mr. Bush seems to want us to be at war forever, without a particular enemy or a particular way to find peace. While Mussolini found this a convenient way to keep the trains running on time, any sober examination would conclude that we are not, in fact, at war.  Congress has not declared a war.  To whatever extent we were fighting a war in Afghanistan despite Congress's refusal to declare war, that war is over.  It is now almost a year since the last attack on America.  We may have a war for propaganda purposes, like Eisenhower's "cold war" or Johnson's "war on poverty", but it is not a war in any legal, rational, or real sense.

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