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?

This is beyond absurd and you know it.

Why does it have to be either or...spend money on all of it, ID checking, cargo, you name it, spend money on it. If we can afford to waste billions of dollars buiding bridges to nowhere in Alaska, we can find some money for air security.

Having a knee-jerk negative reaction to anything the TSA or government does with respect to security is very unreasonable indeed.

What do you think about the absurdity of the FAA's decision to not require child safety seats in airlines? Read their reasoning:
http://www.faa.gov/apa/pr/pr.cfm?id=1966

It has to be either or because we have a limited amount of money and must choose to spend it wisely. If the airlines decide they want to check identity of passengers to protect their revenue, it's up to them, but if we're going tax people so the government can check passengers' ID, it's a waste of money that should be used for other needs.

If our government has shown a tendency to waste taxpayer dollars, why open up another unnecessary way to waste taxpayer dollars?

I'm interested in hearing more legal analysis about the court's decision.

The interstate commerce clause has been eroded since 1995, when SCOTUS decided in Lopez that a federal statute banning firearms within 1,000 feet of schools did not implicate the interstate commerce clause. However, I agree that SCOTUS would likely find some inherent police power justifies the requirement of showing ID. I like the equal protection argument, but unfortunately the climate in today's United States is not solicitous of privacy, especially with the War on Terror raging.

Nothing is unreasonable about your thinking. Your analysis of Kabuki security is dead on (pun intended). TSA has fixated on passengers for two reasons:
1) Passengers perpetrated 9/11, so it is going to prevent that - fighting the last war.
2) Leisure travelers see the checkpoint dog and pony show and are impressed with the measures that Big Brother is taking to protect them. However, they are blissfully unaware of the holes in the system, namely unscreened cargo transported on their airliners (think Lockerbie, Air India, indeed the airliner bombed in 1947 by an @$$hole who wanted to murder his mother) and rampant unchecked access to "sterile" areas.

What? Sure, they didn't threaten to throw the guy in jail, but how can you say there was no penalty? The refusal to board the plane was the penalty for noncompliance!

The Constitution doesn't guarantee the right to buy a pencil either, but that doesn't mean we don't have the right to buy one. Am I comparing the ability to buy a pencil with the ability to board a plane? No. Clearly the two are different. My point is that the Constitution is not a laundry list of rights...and just because a right isn't listed there doesn't mean it doesn't exist.

For example, MSY-MSP, in his intersting analysis, mentions a right to privacy. Except for legal fundamentalists, I daresay most folks would agree that we should be able to expect a reasonable level of privacy in our lives -- even if they disagree on what the level of "reasonableness" is. Where is the right to privacy in the Constitution? It's not. That doesn't mean we're not entitled to it.

I think Gilmore's lawyer has a great point when he says that if the government wants to regulate then they should do it the legal -- promulgating formal regulations and putting them out for public comment. Has the ID requirement ever been put into regulations?

Well, no.

Even in the context of the "blanket" (such as one can call it that) it adds nothing--one can fake an ID, a history to go with that ID, credit to go with that ID, and still sneak a knife past the TSA.

Aviation security in this country still foolishly chooses to assume it can "identify" a threat.

Until the TSA proves that there has been any return on investment from something it's done (and armored door credit goes to the airlines, here) then it's a natural and quite reasonable reaction to think that everything the TSA does is crap.

I agree with the Lopez decision. Lopez took the commerce clause a lot further then it every should have been, and the SCOTUS put it back to where it should have been. In fact I think Wickard went too far, but that is so long ago that is beside the point. I am a federalist at heart, but must deal with the facts as they have been given to us. I believe that the founders gave a document that the states gave up only that which is specifically stated in the constitution and all other powers remained in the states. Any attempt by the federal government to usurp power from the states is a violation of the constitution. However, I would be hard pressed to find more than two justices on the supreme court to agree with me. Right now I think Scalia is the most federalist justice on the supreme court right now.

No that is not what i am saying. The only thing I am saying here is that the ID checkers have no training in what they are actually doing. I honestly would feel better if the TSA agents were checking the ID's. At least then there would be a consistency in who is checking the ID's, and they would have been trained in the whole aspect of security. Further, then there is at least a commoniality in function that shows at least a multi-layer approach to security. However, I do not think this is the real case.

I agree with you re tsa agents checking ID.I dobut that these people have alot of experience checking ID's.However I do not have a problem with them checking ID's.Even if the courts rule this down I could see each airline putting this policy in place.The only change then would be that you could get thru the check point without an ID but you still couldnt fly
-howie

Lessee, now...

Do the bazillions of illegal criminals taking over our country from Down Sur ever have to show ID when they fly? Or if they can sneak into the plane are they okay?

All very confusing.

I'm not sure about the immigrants, but a woman in front of me last year at PDX used an expired inmate identification card to pass through security without a second glance :mad:

I think you left something out of your analysis. Currently, the government requires the airlines to ask for ID. (At one point, I even managed to get someone from the FAA to confirm this to me.) It might even be that the government requires the airlines to require ID from their passengers -- it's not entirely clear.

By the way, this is the secret law that Gilmore was complaining about (and rightly so, IMHO). FAA AVSEC SD96-05, and all that.

If the FAA can't require passengers to show ID, can they require airlines to institute such a requirement? Would the airlines be acting as an agent of the government for purposes the analysis?

P.S. I should say that I never had many hopes for Gilmore's case. The prior case law in this area is so bad, and the current climate is so lousy, that I've been fearing a bad decision in this case right from the state. My personal fear is that Gilmore is wrong as a matter of law (even though I believe he is totally right, as a matter of good public policy).

Even that isn't enough to be a good defense. (Though you're right that currently this is probably the most gaping hole in our current ID procedures.) Even if IDs were totally unforgeable, and ID checkers had a perfect track record at identifying fake IDs, there is still the problem that we don't know who the terrorists are. It doesn't help to know that the flier in front of me is called Bartholomew Greensbriar; what I really want to know is whether B.G. is going to commit an act of terrorism on this flight, and knowing his name doesn't help me answer that question.

People who think that photo ID solves an aviation security problem either don't understand photo ID, or don't understand aviation security.

Like hell it does. :)

So a court of appeals panel affirmed a decision favorable to the "secret rules" jackboots. :(

Not the first time, and certainly won't be the last time. But it won't end the dissent against wrongly-decided decisions like this one.

Deleted

In other words, the government has devised a hall of mirrors which requires you to produce ID but without it appearing that they are responsible. I'm not surprised. It just like 'extraordinary rendition' in that way. Torture is against the law in the US? Okay, we'll send people elsewhere and watch, but we're not doing it, okay?

So maybe we should have a list where terrorist names would be stored and checked against a bulletproof ID. We could call the list the "no-fly list" and call the ID, umm how about a "REAL ID". Then if Mr. Greensbriar shows up on this list, we can subject him to a more through screening.

I asked the federal LEO's that protected the classified facility I worked at why they checked ID on the uncleared people. All they would do is look at the the badge, and the ID and wave them thru. They admitted it didn't do anything for security of our facilities, but they had to look like they were giving extra scrutiny to uncleared personnel.

With as trained as those guys are (probably more so than most regular cops), they're still not making all that much. So it's possible to be highly trained in most if not all of those areas and NOT get paid that much. I know I couldn't live on their salary in this area and I don't even know how they do.

Interestingly enough, I still felt safer there than I do at the airport, and never saw anyone uncleared get harassed or have to deal with patdowns or the shoe carnival. The fact that they were heavily armed may have had something to do with it. :)

It's government issued ID, so what's the problem? :D

We already have that now. It's called the no-fly list, and it's a miserable failure.

If it did work right, only those who actually were terrorists wouldn't get on planes. Instead, thousands of people with common names and little kids find themselves getting harassed because they had the misfortune of sharing a name with someone like "John Smith."

While the idea sounds good in theory, implementation of it is horrible. And what's to stop a terrorist just from getting a fake ID and using an assumed name? I have no doubt that even with Real ID that fake ID will still be available and easy to get.

It actually is a tremendous and stunning success.

If you gauge success by keeping kids and the average public off of planes, or at least subjecting to them to inconvenience because the government didn't build a good enough database that sufficiently identifies a person as an actual threat (birthday, height, etc), then yes, I guess it is a success.

If the government has a problem with said people flying and believe they are such a threat, then why doesn't it just arrest them?

The airport security "dilemma" and fanatical checking of id's is a manifestation of the current policy, which is essentially, "What will make the best show and what can we get away with?" The id portion represents the "best show" portion of the statement: as Bart pointed out, it does not enhance security but does make it look like we are doing something.

The "what can we get away with" portion is more difficult. In another thread, a poster discusses the search of her two year old, which sounds like it was handled crudely, at best. While we are all quick to point out that children this young are exempt from certain aspects of the screening problem, is that the safest measure? In other words, would a terrorist who was planning to blow up a plane really be reluctant to wire up their infant or small child? Doubt it. But the government knows that the public outcry over the search of small children would be so loud that it is more convenient to exempt kids.

I'm not saying that we should start searching two year olds but rather, that we should concentrate on what will make us more secure rather than what is politically feasible. Unfortunately, I don't think that much has been done to actually secure us, but rather to present some sort of smokescreen. Does anyone really think the next attack is going to come on a plane? What is to stop some terrorist from detonating a bomb on an Amtrak train under Penn Station? No security required to get on a train, just a ticket.

Sorry, I know I went a bit OT, but I had to get this off my chest.

Mike

I would completely agree with you except for one thing: The genesis of ID checking originated with the government requirement that airlines check ID, and the government continues to require that airlines demand ID. Procedures exist for pax without any ID (ie, lost wallet cases, etc) yet the government continues to require that airlines demand it of those possessing it.

Had the airlines dreamed up the ID requirement all on their own, sure, there'd be no issue here. In fact, for a few years there, once the government withdrew the ID requirement, many airlines didn't demand photo ID.

I didn't say it should end dissent, just that a Court has now opined that the Constitution (1st Amend.) cannot be used as a challenge to restrictions/limitations applicable to flying (or any other mode, apparently :eek: ).

SCOTUS might conceivably rule differently (I estimate the chances of that being about the same as my winning the lottery; and I don't buy lottery tickets), but unless or until it does then debating whether we do have such a right, as opposed to should have, is moot.