Gilmore decision
 

SAN FRANCISCO (Reuters) - Airlines and the U.S government have the right to keep passengers from boarding planes if they refuse to show personal identification, a U.S. appeals court ruled on Thursday.
John Gilmore, co-founder of the Electronic Frontier Foundation, an online civil liberties group, sued after Southwest and United Airlines in 2002 both did not allow him on board their flights when he refused to show any ID.
In court filing, he argued that requiring identification from airline passengers was unconstitutional, but a three-judge panel of U.S. 9th Circuit Court of Appeals disagreed.
"We hold that neither the identification policy nor its application to Gilmore violated Gilmore's constitutional rights, and therefore we deny the petition," Judge Richard Paez wrote. "The Constitution does not guarantee the right to travel by any particular form of transportation."
"He was not threatened with arrest or some other form of punishment; rather he simply was told that unless he complied with the policy, he would not be permitted to board the plane. There was no penalty for noncompliance."
The United States has stepped up its scrutiny of identification cards at airports over the past decade, with additional checks added after the Sept. 11, 2001 attacks when hijacked commercial jets flew into the World Trade Center.

Guess that ends a long-standing debate here. :(

:(

I suppose he can appeal to the Supreme Court but he'd better hurry before it becomes any more contemptuous of civil liberties. :(

Gilmore's lawyer, William Simpich, said if the government wants to enforce regulations, it should disclose them in writing to the public. He said he is weighing whether to appeal the decision.

"I think they don't want to cough it up because they don't want scrutiny," he said. "We think this is designed as a charade and doesn't make anybody safer."

welcome to www.fxcxedcountry.com :(

They need a challenge from an Alaskan who can only travel by air.

Given the authoritarian attitude of our courts, the Alaskans would probably be told to sail or swim. :(

How about a Hawaiian? :)

Seriously, this is bad news, but just another extension of the security theater. One day, the pendulum will swing back in the direction of freedom. The election of 2008 can only help. Things just couldn't get any worse. (Could they?)

Bruce

The problem is that most likely a court would say you still have a choice. Ok so that choice may be walk or swim, but it is a choice. right?

I read the opinion and the way I interpret the facts of the case, there are two issues here. the first issue is a contract issue. i.e. between Gilmore and the airlines. This is two private entities who are free to contract as they will. The second issue is the government regulation of the private entites.

With regards to the first issue. Any airline can make any rule they want with regards to the contract, so long as those rules are in effect at the time of the contract. If the airlines want to see photo ID when you check in then that is the airlines right. It may be for revenue protection or it could be for security reasons it doesn't matter. The airline is free to have what ever rules it wants in place, and the customer is free to decide if they want to contract with the airline based on these rules. Private contracts are not subject to constitutional challenges, unless the private individual is acting for the government or is violating the "civil rights" of the customer. (In otherwords refusing the carry the person based on a protected category.) From this grounds the ID requirement is fine.

The second issue is the government requiring an ID to use a private carrier or access a public building. This issue is where there is a constitutional challenge, that may or may not be sucessful. Currently, I can get through an entire airport without anyone from the airline I am flying every actually seeing my ID. However, the government requires ID to access the security checkpoint. (Well you still don't need ID you just get SSSS). Currently, every person is entitled to a right to privacy. However, SCOTUS has been slowly eroding the full right to privacy. We have to provide our name when asked by the police or other law enforcement, but up to now we have not been required to show ID. There is no current requirement in the US that you have an ID. However, having one does make your life simplier. If the Gilmore case does go to SCOTUS, the issue will turn on 2 issues. 1) does congress have the right to regulate the activity, and 2) Does the regulation unreasonably interfere with constitutional gaurentees? I think most likely the SCOTUS would rule against Gilmore on appeal for the following reasons.

1. Congress has the express power to regulate interstate commerce. Congress has the implied power to regulate intrastate commerce, when the intrastate commerce effects interstate commerce. If we look back at the depression era cases, such as Wickerd v. Filborne, the SCOTUS ruled that the simple act of growing food for yourself in your garden effected interstate commerce so that it could be regulated by the FEDs, it is more than likely the SCOTUS would rule that even a flight entirely within the state of CA would be under the control of the commerce clause. Thus congress has the power to develop regualtion in this area

2) is the ID requirement reasonable to meet the stated governmental purpose? This is the tougher question. The court would have to look to the alternatives available to Gilmore and if any of those alternatives are reasonable. This court has given reasonable a wider definition than many of us would deam reasonable, but that is the way it is now. Most likely the court would rule that Gilmore, could use several modes of transportation to get where he wanted, where the government regulation requiring an ID is not present. Currently, the federal government does not require an ID to ride the bus, take a train, walk, ride your bicycle, or ride in a car as a passenger. The court would then rule that Gilmore has the option of these modes of transportation. While these may be more expensive, less convientient or even take significantly longer none of them are per se unreasonable. Thus the regulation would most likely pass this muster as well.

I guess what I am saying, is while I don't necessarily agree with having to show ID to go places by air, I cannot say this ruling is legally and constitutionally wrong.

Where I would like to see the challenge is access to a government building, that one needs to access and there are no alternatives available. The one I can think of is accessing a DMV.

Just had a second thought that may work on this case, but not likely. If I was Gilmore's attorney, I would go for the arguement that not requiring all passengers to have ID is the fatal flaw. In particular, children under a certain age get a free pass without an ID. It is possible to get a government ID for a child, therefore, allowing children through without ID is creating a different category of person and is not providing equal protection under the law. Further by exempting children congress is failing to meet the stated goal. Therefore the imposition is not narrowly tailored to meet the goal. The problem with this arguement is that it is easily fixable by Congress, and we won't like the fix.

Please keep in mind I have been writing patent applications all day so I may not make a whole lot of sense here. :D

Finally a court decision that doesn't make me want to throw something at the TV/radio/computer, and from the 9th Circuit!!! Full moon tonight?

^ ^ ^

Entertainingly, it seems no one here except you and I considered the possibility that this is simply the right decision under the law.

We're the only ones here not paranoid that everyone with a badge is out to get us.

I'm not paranoid, it's just none of their goddamn business who I am.

I wouldn't say that we are all paranoid here. If you read my post above, I provide a quick analysis of the case and the legal grounds for the case. Given the current jurispudence of the US this decision is the correct one. I did say that there are areas that you could try and challenge this ruling/requirement, but I didn't think the likelihood of sucess would be very high.

The problem I have with the ID requirement is that it does nothing to promote real security. No one who ever sees the ID actually knows anything about me or the ID's. I have yet to see the ID checkers or the airlines whip out the ID book to check if an ID is actually a real ID. Do they even have them? (Heck I use a CanPass ID, issued by the Government of Canada, and have yet to been challenged on it. I have had them say they haven't seen this one before, but that is it) Because of the number of ways to get a fake ID, ID checking is never going to be an effective security measure.

My issue with this line of reasoning is that it is only true if it is performed in a vacuum... that is, if it is the only element of security.

ID checking is part of a larger system that includes many other components. Taken together, they create a system that is generally secure and can be replicated nationwide. Imperfect? Indeed. But on balance, effective.

ID checking is only effective if the people who are checking them are in fact trained in the other areas. If they not trained in the other areas then they are in fact operating in a vacuum. As the only place I have to show my ID is to the line checker, and from conversations with friends who are LEO at the airport, i am forced to conclude that these folks have no training whatsoever beyond being told to make sure the name on the BP is the same as the ID and to highlight if the person has SSSS. That is all they are paid to do. Heck at some airports they don't have access to the secure areas.

I would agree with your statement that ID checking can be an effective part of a security program, but only when the person doing the checking is actually trained. A LEO is trained. A $6.25/hour person is not trained. A LEO knows more about how to size up a person. The ID checker doesn't. The LEO knows the relevant LAW (or most of it). The ID checker does as told. If there was a LEO checking all ID's then I would say you are correct, but until that day comes, the ID checking does nothing at all to promote real security it is a cover to make people feel better.

OK let's say every new TSA employee goes to 2 years of training in everything from expolsives detection, to ID forgery to psychological interogation techniques. They need to pass rigorous exams to qualify, are tested regularly and must constantly update their skills. They are paid six figures a year.

Would you then be OK with that employee checking your ID? This of course wil not satisfy the anti-government extremists as they will cry foul at the cost but I think most reasonable people can see the benefits.

With hardened cockpit doors and a policy to not cooperate with hijackers, air travel is already amazingly safe. Inspecting all cargo would make it safer.

The added ID check training from your hypothetical may not save one life. In fact, these security measures might increase the cost and hassle of air travel so much that some people would choose to drive instead. Since driving is much more dangerous, your hypothetical security scenario might cause more travel deaths and injuries.

If you really wanted to make air travel safer, you would suggest spending less money on ID checks and more money on cargo screening, air traffic controllers, runway improvements, maintenance inspections, etc.

When the costs and benefits of security are weighed rationally, only people who are truly paranoid about terrorism believe that more ID checks are needed, since money spent on ID checks comes at the expense of other safety measures.

I'm definitely interested in hearing more analysis of the case at hand, but what's unreasonable about my thinking?