Gilmore vs. Ashcroft

January 14th, 2003 – 8:18 pm
Tagged as: Uncategorized

Posted to the cryptography discussion list:

Subject: Air ID: Gilmore v. Ashcroft: Friday AM hearing in SF
From: John Gilmore

My case against John Ashcroft, TSA, and various other agencies will
have its first hearing at 9AM on January 17, 2003 in San Francisco.
You-all are encouraged to attend if you’re nearby. We’ll be arguing
about whether the case should be thrown out as invalid.

I’m asking for a declaration from the court that would overturn the
unconstitutional requirement that US persons must show ID to travel
throughout the US. Not only airplanes, but trains, buses, cruise
ships, and major hotel chains are now enforcing ID requirements,
largely at the behest of the Federal Government. Many skyscrapers
also demanded ID for a time after 9/11; I refused, and eventually most
of them have relented. I have not flown in the US since 9/11/01, and
I’ve recently been denied lodging as well as travel, for my refusal to
present ID on demand. (Note that this is a *separate* issue from the
government’s recent demand for more information from citizens who
enter or exit the US border. That’s a bad idea too, but raises
different issues.)

We free citizens not only have a constitutional right to travel
throughout the US without government-imposed restrictions, but also a
constitutional right to refuse to identify ourselves to government
agents unless there is probable cause to suspect us of a crime. These
aren’t made-up issues. There are many legal cases that uphold them in
the last few decades, as well as more than a hundred years ago. Read
our reply brief for a guide to these cases:

We citizens also have a right to know what the laws are that affect
the general public. There is no such law requiring IDs of travelers,
and TSA won’t publish their secret regulation that purports to require
ID. So nobody actually knows whether ID is required, in what
circumstances, what kinds of ID are OK or not, what options people
without ID have, etc. (By nobody, I really mean nobody — not even
the people “enforcing” this “rule” know what the “rules” are. Try
refusing to show ID on your next flight, and when they tell you that
you can’t board, ask them what regulation requires you to show ID to
board a plane. I did this on July 4, 2002. The resulting confusion
of different answers from each person in authority would be very
amusing if it wasn’t an unconstitutionally vague infringement of our
right to travel.)

The government and airlines responded to my lawsuit with a motion to
dismiss the case. Here are their arguments: I can’t challenge
anything but the demand for ID, not what they do with it after getting
it (thus I can’t challenge or inquire into the “no-fly list” and other
database lookups that *motivate* the demand for ID). I can’t
challenge anything at all in this court, because the Courts of Appeals
have exclusive jurisdiction over TSA orders. The government need not
publish a rule like this, because (1) TSA security directives are
exempt from FOIA by statute, and (2) no other reason requires them to
publish the law. The airlines’ “request” for ID does not infringe my
right to travel, even if they don’t let me travel when I “decline”. I
can’t challenge the ID demand on trains, buses, or cruise ships
because I didn’t actually go down and get rejected by a train, bus, or
cruise line, even though their web sites told me I’d be rejected. The
First Amendment is not involved, even though I can’t assemble with
others, speak at conferences, or petition the government for redress,
without traveling. Anything they do to anyone in an airport is exempt
from the Fourth Amendment if they claim it relates to “security”.
That’s the short version; you can read the long version here: , and their later reply here:

The government gave away their real motivation on the last page of
their brief, though:

“If a passenger refuses to provide or verify his or her identity,
airline security officers cannot determine whether the passenger is
among those individuals ‘known to pose, or suspected of posing, a risk
of air piracy or terrorism or a threat to airline or passenger

In other words, the demand for ID is integral to building a dragnet. They
have a little enemies list of “suspected” “threats”, and they need our
ID to check us against the list. (How you get on and off this list is
dubious and secret, but many documented cases exist of innocents being
harassed, searched, and denied boarding, due to errors in it.) The
constitutional catch is that the government can’t set up a dragnet and
demand that every passerby identify themselves — not in airports, and
not anywhere else unless there’s an exigent emergency (e.g. a bank was
just robbed down the block by someone matching our description). A
demand for ID is a search under the Fourth Amendment, and they have no
probable cause to search us.

We will argue that the case should not be dismissed, in the courtroom
of Judge Susan Illston, on the 19th floor of the San Francisco Federal
Building, 450 Golden Gate Avenue at Polk St, at 9AM on January 17, 2003.

If you think airport security is out of hand, show up. If you think
Total Information Awareness is a terrible idea, show up. (CAPPS 2 is
the version of TIA they’ll roll out in airports in 2003, and it all
hangs on the demand for your ID.) If you think John Ashcroft is a
traitor to the Constitution he swore to uphold, show up. If you think
every “free” citizen should not be routinely treated like a suspected
terrorist, show up. Wear good clothes and be polite. Impress the
judge with the seriousness of your interest in these issues. Oh yes,
you’ll have to show ID to get into the Federal Building. That’s
unconstitutional too, but not the subject of this particular case.

You can read all the case documents at:

Thank you.

John Gilmore

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