July 18, 2002
San Francisco - Civil libertarian John Gilmore today challenged as unconstitutional a secret federal rule that requires domestic US travelers to identify themselves.
"United States courts have recognized for more than a century that honest citizens have the right to travel throughout America without government restrictions. Some people say that everything changed on 9/11, but patriots have stood by our Constitution through centuries of conflict and uncertainty. Any government that tracks its citizens' movements and associations, or restricts their travel using secret decrees, is violating that Constitution," said Gilmore. "With this case, I hope to redirect government anti-terrorism efforts away from intrusive yet useless measures such as ID checks, confiscation of tweezers, and database surveillance of every traveler's life."
At issue is a series of secret security directives issued by the Federal Aviation Administration and/or the Transportation Security Administration (TSA), in consultation with the Department of Justice and the Office of Homeland Security. The directives appear to require US airlines to demand identification before allowing customers to travel. Because the directives are secret, no citizen actually knows what they require.
On July 4, Southwest Airlines staff prevented Gilmore from boarding a pre-paid flight from Oakland to Washington, D.C, where he intended to petition the government to alter the ID check. He then went to San Francisco International Airport and tried to purchase a similar ticket on United Airlines. Both airlines, though unable to identify any actual regulation requiring him to identify himself, prevented him from flying. United stated that they were following an unwritten regulation that had only been communicated to them orally, and which changes frequently.
"History shows many abuses when government agents can demand 'your papers, please!'" said Bill Simpich, an Oakland civil rights lawyer, and lead attorney in Gilmore's suit. "TSA plans to deploy 'CAPPS II' later this year. This will use your ID to search in a stew of databases like credit records, previous travel history, criminal records, motor vehicle records, banks, web searches, and companies that collect personal information from consumer transactions. Your life history will be gathered and scanned, using secret criteria, whenever you book a flight or arrive at an airport. If the machine decides you're a risk, the airline will not let you fly, and federal cops will show up to interrogate you. They will probably tell you that you were 'randomly' selected for all this attention, but they will be lying."
Gilmore v. Ashcroft, filed today in Federal Court for the Northern District of California, challenges every secret regulation that demands identification from innocent citizens, or restricts their domestic travel. Such regulations are unconstitutional because they are unpublished; require government agents to search and seize citizens who are not suspected of crimes; burden the rights to travel, associate, and petition the government; and discriminate against those who choose anonymity. The case also argues that because the regulations are secret, they violate the Freedom of Information Act.
Mr. Gilmore is a businessman, civil libertarian, and philanthropist. He was the fifth employee of Sun Microsystems, an early author of open source software, and co-creator of the Electronic Frontier Foundation, the Cypherpunks, the DES Cracker, and the Internet's "alt" newsgroups. He serves as a director on several for-profit and nonprofit boards.