Gonna Fly Now?


Ari Paparo, a food market researcher from New York, was vacationing in California in early November when his wallet was stolen. A nuisance, but not a crisis. Then Delta, the airline for his return flight from San Diego two days later, insisted he could not, under any circumstances, board the plane without presenting an official photo i.d. It wasn't the airline's fault, agents insisted–it was the law. Official Federal Aviation Administration policy, the word from on high. (Paparo's mother saved the day by faxing a copy of his birth certificate.)

I was told the same thing by a different airline when I had to fly to St. Louis two days after being mugged. I missed my flight because the airline insisted I return home for my passport before being allowed on the plane. I quickly accepted the airline's excuse–the incipient totalitarianism of being required to show papers before traveling seemed in keeping with anti-terrorist hysteria.

But it turns out the government isn't entirely to blame. The FAA, in fact, insists specifically that it does not require airlines to deny entrance to people without i.d., though a secret security directive (now the subject of more than one Freedom of Information Act request) does apparently make airlines ask for one. The airlines love the policy, as it enables them to spot passengers illicitly using other people's frequent flyer miles.

The FAA is also probably happy with the airlines' apparent misrepresentation of the law, says Robert Ellis Smith, editor of the Privacy Journal newsletter. It avoids the constitutional difficulties that would arise if the government itself required the i.d., while accomplishing the same result.

Those constitutional difficulties may become a legal matter soon anyway. John Gilmore, a San Francisco software designer who ran afoul of airline i.d. policies, is contemplating a legal challenge to their constitutionality. Gilmore is a board member of the Electronic Frontier Foundation, an organization concerned with electronic privacy. The legal challenge would be based on an '80s Supreme Court decision that limits government officials' ability to demand identification. After his first FOIA request was rebuffed, Gilmore's lawyer, Lee Tien of Berkeley, has filed an administrative appeal to see exactly what it is the FAA is demanding of airlines. They are waiting for the results of that appeal before deciding to sue.

"My main interest is protecting the option of people to remain anonymous and travel in the United States without government-issued paperwork," Gilmore says. "I want to avoid, 'May I see your papers, comrade?'"