Airline ID requirement faces legal challenge

R.A. Hettinga rah at
Tue Oct 12 14:15:53 EDT 2004


USA Today

Airline ID requirement faces legal challenge
By Richard Willing, USA TODAY
At a time when Americans have come to expect tight security for air travel,
it might seem to be an odd question: Does requiring airline passengers to
show identification before they board domestic flights amount to an
"unreasonable search" under the Constitution?

John Gilmore is challenging the federal domestic airline ID requirement,
saying it violates his right to travel in the USA anonymously.
File photo

Yes, says John Gilmore, a computer whiz who made a fortune as an early
employee of Sun Microsystems. His challenge of the federal ID requirement,
which soon could get a hearing before a U.S. appeals court in San
Francisco, is one of the latest court battles to test the balance between
security concerns and civil liberties.

 At issue is Gilmore's claim that checking the IDs of passengers on
domestic flights violates his right to travel throughout the USA
anonymously, without the government monitoring him.

 Lawyers involved in the case say it apparently is the first such challenge
to the federal rules that require airline passengers to provide
identification. In a similar case, two peace activists are suing the U.S.
government to determine how their names came to be placed on a federal
"no-fly list." Rebecca Gordon and Janet Adams were not allowed to board a
San Francisco to Boston flight in August 2002 after they were told that
their names were on a "secret FBI" list of potential security threats,
their court filing says.

"I believe I have a right to travel in my own country without presenting
what amounts to an internal passport," Gilmore, 49, said in an interview.
"I have a right to be anonymous, (to not) be tracked by my government for
no good reason."

Gilmore said he has no problem with security checks that focus on
passengers' luggage. He says he also does not object to having to present a
passport to board flights to other countries.

 Some privacy groups say Gilmore has a point. But others who support the ID
requirement have cast the San Francisco resident as being out of touch with
the realities of air travel since the Sept. 11 attacks.

Kent Scheidegger, counsel for the Criminal Justice Legal Foundation, a
conservative group in Sacramento, says the ID requirement is good policy
and "eminently constitutional."

"The Fourth Amendment forbids not searches that you don't like, it forbids
unreasonable searches," he says. "Nothing could be more reasonable at this
time than to know who you're flying with."

 The Justice Department is fighting Gilmore's claim. Acting on the
department's motion, a U.S. district court judge in San Francisco dismissed
the suit last March. Gilmore has appealed; a hearing before the 9th Circuit
Court of Appeals is likely to be scheduled after briefs are filed next

In court papers, the Justice Department has not defended the ID policy, or
even acknowledged it exists. It has said national security law requires
that this aspect of the case be argued in a courtroom closed to the public,
including Gilmore. The appeals court denied the government's secrecy
request Sept. 20, and the government has asked the court to reconsider.

 Rules on the Transportation Security Administration's Web site say
passengers 18 and older need one form of government-issued photo
identification or two forms of non-photo identification to board domestic

 Airlines adopted such a policy on their own after terrorists bombed an
international flight over Lockerbie, Scotland, in December 1988. The bomb
that killed all 270 passengers on the jet was said to have been placed in a
passenger's luggage by a terrorist who got into a restricted area. The
airlines say checking IDs against luggage and passenger information is a
way to deny terrorists access to flights.

The TSA, formed two years ago in the wake of the Sept. 11 attacks, checks
IDs to verify passenger identities and to check them against "watch lists"
of known or suspected terrorists.

Gilmore's suit says the requirement amounts to an unreasonable search, a
"burden" on the right to travel and a form of self-incrimination because it
singles out "anonymous travelers" for searching.

Gilmore said the ID requirement does little to ensure security. "Ordinary
citizens may show correct identification, but do we really think that
someone who is willing to commit a terrorist act won't also be willing to
present false identification?"

Gilmore's suit was filed in 2002, after he was denied seats on two flights
at the airport in Oakland. It was his first domestic flight since the 9/11
attacks. Before then, Gilmore said, he was permitted to board flights after
presenting a Federal Aviation Administration document that said showing IDs
was optional.

In 1982, Gilmore, a computer programmer, was the first person hired by the
founders of what became Sun Microsystems. He retired eight years ago with
what his publicist, Bill Scannell, calls "multiples" of millions of dollars.

Since then, Gilmore said, he has worked to promote "individual rights," in
part by sponsoring a foundation that is critical of travel restrictions and
what he considers violations of speech and privacy rights.

Last year, before taking off on a British Airways flight from San Francisco
to London, Gilmore angered fellow travelers by refusing to remove a blue
button on his lapel that had the words "suspected terrorist" imposed over
the picture of an airliner. After a delay, the pilot went back to the gate
and ordered Gilmore off the jet.

While his case moves through court, Gilmore has remained grounded when it
comes to domestic travel.

He hired friends to drive him to San Diego and across the country to attend
board meetings of corporate and non-profit groups. He took a driving
vacation to Oregon. Invited to a family reunion in Massachusetts, he
thought of chartering a private plane but balked at the $33,000 price.

"Yes, it can be inconvenient at times," Gilmore said of his fight against
the ID requirement. "But I believe I'm right."

R. A. Hettinga <mailto: rah at>
The Internet Bearer Underwriting Corporation <>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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