By Ryan Singel
Government lawyers defending the identification requirement at the
nation's airports from a lawsuit by privacy activist John Gilmore
admitted in a new filing Wednesday that the requirement exists, but
argued it cannot be challenged or seen in full because it is a law
enforcement technique, not a law.
The lawsuit revolves around whether a rule exists that says passengers
must show their ID to airline agents before boarding a plane. Gilmore
is also trying to get the government to state exactly what the rule,
if it exists, says. The government has refused to confirm that the
requirement exists or show the exact wording. Justice Department
lawyers offered in an earlier filing to show the rule to an appeals
court judge in secret without Gilmore's lawyers present.
The appeals court denied that motion on Sept. 20.
Internet entrepreneur Gilmore first challenged the constitutionality
of requiring airlines to ask passengers to show identification in U.S.
District Court in San Francisco in July 2002, but the government
refused to tell that court whether the rule existed.
Gilmore argued that the rule is vague, since no one knows what kind of
identification is adequate and the penalties are unknown. He said he
opposes Americans being subjected to a secret law. The rule impinges
upon the right to travel and leaves people open to unreasonable
searches, he added.
In Wednesday's filing, the government continued to stonewall about the
existence of the identification-or-search requirement. The
Transportation Security Administration published notice of the
identification portion of the requirement in a little-noticed May 2004
about maritime security. That notice, which expanded the reach of secrecy
rules for information classified as "sensitive security information,"
carved out an exception to secrecy for cases when the government needs to
publicize a rule to ensure "compliance."
"For instance, as part of its security rules, TSA requires airlines to
ask passengers for identification at check-in," the filing
read. "Although this requirement is part of a security procedure that
is sensitive security information, TSA has released this information
to the public in order to facilitate the secure and efficient
processing of passengers when they arrive at an airport."
William Simpich, one of Gilmore's lawyers, questioned the timing and
manner of the TSA's filing, calling it embarrassing.
"They are trying to hide what they are doing from the American people,"
The government filed the notice just after Gilmore's original case was
dismissed, and Simpich claimed the government hid the notice to avoid
future legal challenges since such orders generally have to be
challenged within 60 days.
Justice Department lawyers also argued that Gilmore cannot challenge
the requirement because it is not a law, it is a law enforcement
"The identification-or-search requirement is simply a technique used
to detect possible violations of the law, such as the prohibition on
carrying a weapon or explosive onto the plane," they wrote. "While
passengers have a right to know the law (that they cannot bring
weapons on board), they have no due process entitlement to advance
notice of how the Government might attempt to discover whether the law
is being broken."
Simpich dismissed that argument as absurd doublespeak.
"Drugs are against the law," Simpich said. "So blowing through your
house to look for drugs is a law enforcement technique that you can't
Gilmore's lawyers have two weeks to file their reply to the 9th
Circuit Court of Appeals in San Francisco, which will then set a
Justice Department spokesman Charles Miller declined to comment on the
government's brief, calling it "carefully crafted".
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