America's Quixote of air travel is back in the fight: John Gilmore, whose legal fight against airline identification (ID) requirements was detailed in a Reason cover story ("Suspected Terrorist," August/September 2003), has appealed the district court decision to dismiss his case.
This time, he's not alone. Wired News reports that a bevy of privacy rights interest groups are with him, signing on to amicus briefs, although they were not openly on his side when the case was originally filed. These include the Center for Democracy and Technology, the Center for Constitutional Rights, and the Electronic Privacy Information Center.
Gilmore is claiming that the airlines' often contradictory demands for ID before they let you fly—connected to federal mandates that are so secret the Justice Department's lawyer wouldn't even tell them to the judge in Gilmore's original suit—constitute a violation of his right to travel, peaceably assemble, and be free from unwarranted searches and seizures. He further argues, among other things, that the secret directive violates due process and is inherently void due to vagueness.
His appeal brief provides an impressive array of arguments and past precedent for these assertions, too long to summarize adequately here. One touches on the "no-fly" lists, made recently famous when they snared Teddy Kennedy. As Gilmore's brief notes, the "true purpose of the ID requirement is to allow airline security to determine whether the passenger is among those individuals known…or suspected of posing…a threat… [It] is designed to check whether a person is on a government created list of suspects… A No-Fly rule directed at a specific group of people is equivalent to a bill of attainder unless with each person there is an associated judicial warrant or conviction. Yet judicial involvement in maintaining the lists is highly unlikely…"
When Gilmore started this fight, he was a lone wolf on a far frontier of privacy. No more. What has changed in the meantime? For one, there was the Supreme Court's Hiibel decision in June, which upheld a widespread right of cops to ask you to identify yourself on pain of arrest.
But what Hiibel did not do—because even the five Supremes insensitive to Mr. Hiibel's privacy rights realized this would hit a tripwire in the American political consciousness—is demand that that ID had to be state issued. They refused to extend too far the areas in which a citizen must have a government-issued ID. Americans have tended, at least rhetorically, to a distinct aversion to having to show government papers in order to move freely in public. And our politicians have honored that, at least in the breach, by refusing to certify a singular mandatory national ID. (The state-issued driver's license has taken on this role de facto though not—yet—de jure.)
Last week Lee Hamilton, vice chairman of the Sept. 11 Commission, told a Senate panel that the national standards for drivers' licenses that the panel recommended "might lead to a national ID card." (The Commission also recommends that even American citizens at border crossings be required to have biometrically encoded passports, not just the foreigners currently required to do so under the US VISIT program.) The American Association of Motor Vehicle Administrators is thrilled—they've long been plumping for more federal money to help them streamline and centralize the operations of all the state issuers of licenses.
They aren't the only public-choice forces pushing for such nationalization of ID. Larry Ellison of software powerhouse Oracle famously called a few year's back for the creation of a national ID with concomitant database, for which he generously offered to provide operational software gratis. As with the drug pushers of legend, the first one's free. There are people who will make a lot of money instituting a national ID, and there are politicians who might think they can prosper by selling it as a vital post-9/11 security measure.
But as Gilmore has argued, real security doesn't often have a great deal to do with knowing who someone is, or who a card says he or she is. (Even the most biometrically sophisticated of modern ID documents will be potentially forgeable for those with a strong incentive to do so.) Real security has much more to do, in Gilmore's airline context, with making sure people, whatever their card says, don't bring weapons or bombs on planes—or making sure that trustworthy people on planes, whether pilots or air marshals, are empowered to resist miscreants. (After 9/11, normal citizens have almost certainly gotten the message to resist at all costs.) The government still doesn't want to allow the good guys to defend themselves on planes effectively, and thus are all the more insistent on the security theater of showing an ID card.
That criminals can often evade or elude a law doesn't necessarily mean the law is a bad idea. But when the law is inherently a bad idea whose only supposed saving grace is its ability to ensure blessed safety when no less onerous measure can—and that is the case with state ID demands—then the fact that the measure isn't likely to deliver its supposed good is a powerful argument against it. Esau forbid we sell our liberties for a mess of pottage and don't even get the pottage. Gilmore is fond of citing a paper from some M.I.T. students showing that ID requirements most likely provide less long-term security than a system of thorough random searches, since ID-based systems can be gamed by sending terrorists through security over and over to see whose identities trigger enhanced searches. After ascertaining this, it's easier for them to figure out who on their team is most likely to succeed in smuggling weapons.
I've stated elsewhere that I thought Gilmore, even if he wins, will probably lose: that a court-ordered end to legal requirements to show ID to travel will merely morph those requirements into the policies of the companies providing the transportation. (Only with Amtrak will that raise clear constitutional problems.) But with his gathering of more widespread support with the appeal, I've changed my mind. Not on the result of the case per se; I still suspect he will either lose, or through winning still ultimately lose in the practical world, on this specific issue.
But he has done a glorious thing: raised a clarion call on the far outskirts of liberty, and gotten others to hear, and act. The addition of those new voices to Gilmore's team is heartening, even if it doesn't guarantee a court victory. He's already done the best a rights gadfly can hope for, in a sense. The voices in defense of old-fashioned notions of privacy and liberty to travel without being asked for your papers have now gathered around even this most seemingly quixotic application.
When I wrote about Gilmore before, almost everyone thought he was going too far. Now, more and more people are realizing that it's the government that has gone too far, and seems intent on going even farther. It's now the job of civil liberties advocates, individually and organized, to do everything they can to stop it. Politicians ultimately have to be convinced that they can't go too far in this direction for fear of their careers, and Gilmore has made a huge step in this direction. He is no longer a lone wild maverick. He has already, in just a year, extended the frontiers of what is considered a respectable argument in defense of our liberty to travel and our privacy. It's a meaningful victory indeed, no matter what happens next.