Sunday, February 27, 2005
SAN FRANCISCO -- John Gilmore's splendid isolation began July 4, 2002, when, with defiance aforethought, he strolled to the Southwest Airlines counter at Oakland Airport and presented his ticket.
The gate agent asked for his ID.
Gilmore asked her why.
It is the law, she said.
Gilmore asked to see the law.
Nobody could produce a copy. To date, nobody has. The regulation that mandates ID at airports is "Sensitive Security Information." The law, as it turns out, is unavailable for inspection.
What started out as a weekend trip to Washington became a crawl through the courts in search of an answer to Gilmore's question: Why?
In post 9/11 America, asking "Why?" when someone from an airline asks for identification can start some interesting arguments. Gilmore, who learned to argue on the debate team in his hometown of Bradford, McKean County, has started an argument that, should it reach its intended target, the U.S. Supreme Court, would turn the rules of national security on end, reach deep into the tug-of-war between private rights and public safety, and play havoc with the Department of Homeland Security.
At the heart of Gilmore's stubbornness is the worry about the thin line between safety and tyranny.
"Are they just basically saying we just can't travel without identity papers? If that's true, then I'd rather see us go through a real debate that says we want to introduce required identity papers in our society rather than trying to legislate it through the back door through regulations that say there's not any other way to get around," Gilmore said. "Basically what they want is a show of obedience."
As happens to the disobedient, Gilmore is grounded. He is rich -- he estimates his net worth at $30 million -- and cannot fly inside the United States. Nor can he ride Amtrak, rent a room at most major hotels, or easily clear security in the courthouses where his case, Gilmore v. Ashcroft, is to be heard. In a time when more and more people and places demand some form of government-issued identification, John Gilmore offers only his 49-year-old face: a study in stringy hair, high forehead, wire-rimmed glasses, Ho Chi Minh beard and the contrariness for which the dot.com culture is renowned.
"I think of myself as being under regional arrest," he said. Even with $30 million in the bank, regional arrest can be hard. He takes the bus to and from events at which he is applauded by less well-heeled computer techies who flew in from around the country after showing a boarding pass and one form of government-issued photo ID and arrived in rental cars that required a valid driver's license and one major credit card.
He was employee No. 5 at Sun Microsystems, which made Unix, the free software of the Web, the world standard. He japed the government by cracking its premier security code. He campaigned to keep the software that runs the Internet free of charge. After he left Sun, Gilmore started his own firm, sold it for more money than he seems to have bothered to count and has since devoted his time to giving it away to favored causes: drug law reform, a campaign to standardize computer voting machines and the Electronic Frontier Foundation, something of an ACLU for the Information Age. ....
... Gilmore moved to San Francisco and took up computer consulting. One day, a friend called. He'd gone to work for a startup firm called Microsoft. The company's founder, a Harvard dropout named Bill Gates, was selling Unix, a universal software on which the Internet would be based, and he wanted Gilmore to find a way to make Unix work on the computers of a prospective customer based at Stanford University. After a job interview, Gilmore called the people at Stanford. They were starting a company to be called Sun, short for Stanford University Network, and would Gilmore like to be their first software employee.
"I hired on at Sun because the work was interesting," he said. The pay was just short of marginal. ....
More than $1 million of his money has gone to house and feed the Electronic Frontier Foundation. On a given day, visitors can find a team of lawyers meeting with young men and women, still pale from too much time indoors, seeking counsel to protect them from the wrath of everyone from the Recording Industry Association of America, which is trying to shut down music file sharers, to federal regulators worried about the latest software for encrypting e-mail communications.
"He cares a great deal about privacy," said Lee Tien, a full-time litigator at EEF. Because privacy is one of those things that disappears without always being noticed right away, Tien and other EFF lawyers find themselves fighting regulations nobody gets excited about right away.
"Privacy discourse ends up being at one end, 'What have you got to hide?' vs. 'Mind your own business,' " Tien said.
"If John Gilmore were a country," adds his personal publicist, Bill Scannell, "his motto would be 'Let Me Alone.' "
Rosa Parks did not ride that bus in Montgomery by accident. Several strategy meetings preceded the famous ride in which the founding mother of the civil rights movement boarded a bus and declined to sit in the back.
Gilmore's famous visit to two airline ticket counters in the Bay Area was charted out. He checked in with his lawyer. He kept notes. He booked a flight from Oakland, with its slightly cheaper fares, to Washington, D.C., where he planned to drop in on the offices of his member of congress, U.S. Rep. Nancy Pelosi, D-San Francisco, to convey his growing concern about the amount of data the government is gathering from and about its citizens.
His reason for travel, he would later say, was "to petition the government for redress." That added First Amendment issues to a Constitutional exercise that would also turn on the amendments against unreasonable search and seizure and the right to assemble and petition the government for redress of grievances.
Everything went pretty much according to expectations. That is to say, everything went to hell in a hurry.
As Gilmore tells it, he arrived at the gate two hours early, a paper ticket purchased through a travel agent in his hand. A Southwest agent asked for his ID. Gilmore, in turn, asked her if the ID requirement was an airline rule or a government rule. She didn't seem to know. Gilmore argued that if nobody could show him the law, he wasn't showing them an ID.
They reached a strange agreement for an argument about personal privacy: In lieu of showing ID, Gilmore would consent to an extra-close search, putting up with a pat-down in order to keep his personal identity to himself. He was wanded, patted down and sent along.
As Gilmore headed up the boarding ramp a security guard yanked him from line. According to court papers, a security agent named Reggie Wauls informed Gilmore he would not be flying that day.
"He said, 'I didn't let you fly because you said you had an ID and wouldn't show it,' " Gilmore said. "I asked, 'Does that mean if I'd left it at home I'd be on the plane?' He said, 'I didn't say that.' "
The Gilmore case is, if anything, about things unsaid. Gilmore -- and millions of other people -- are daily instructed to produce some manner of ID: a driver's license, a Social Security number, a phone number, date of birth. When Gilmore asked to see the rules explaining why his photo ID is necessary for airline security, his request was denied. The regulation under which the Transportation Safety Administration, an arm of the Department of Homeland Security, instructs the airlines to collect such identification is classified as "Sensitive Security Information."
When Congress passes a law, it is as often as not up to some agency to decide what that law means and how to enforce it. Usually, those regulations are available for people to examine, even challenge if they conflict with the Constitution.
This wasn't the case when Congress passed the Air Transportation Security Act of 1974. The Department of Transportation was instructed to hold close information that would "constitute an unwarranted invasion of personal privacy" or "reveal trade secrets" or "be detrimental to the safety of persons traveling in air transportation."
The Federal Aviation Administration, then a branch of the transportation department, drew up regulations that established the category now known as Sensitive Security Information.
When the responsibility for air travel safety was transferred to the newly created Transportation Safety Administration, which was in turn made a branch of the new Department of Homeland Security, the oversight for Sensitive Security Information went with it. The language in the Homeland Security Act was broadened, subtly but unmistakably, where SSI was concerned.
It could not be divulged if it would "be detrimental to the security of transportation."
"By removing any reference to persons or passengers, Congress has significantly broadened the scope of SSI authority," wrote Todd B. Tatelman, an attorney for the Congressional Research Office. Tatelman was asked by Congress last year to look at the implications of Gilmore's case.
Tatelman's report found that the broadened language essentially put a cocoon of secrecy around 16 categories of information, such as security programs, security directives, security measures, security screening information "and a general category consisting of 'other information.' "
The government has been so unyielding on disclosure that men with the name David Nelson suddenly found themselves ejected from flights. Somewhere in the system, the name came up on the newly created "No Fly" list. Sen. Edward M. Kennedy, D-Mass., found himself in the same dilemma. When baggage screeners were caught pilfering, prosecutions were dropped because a trial would require a discussion of "Sensitive Security Information."
When John Gilmore demanded proof that the airport ID rule met Constitutional muster, the government at first declined to acknowledge it even existed.
Ann Davis, a spokeswoman for TSA, tacitly acknowledged the strange rabbit hole into which Gilmore has fallen. The Department of Justice, in its first response to Gilmore's suit two years ago, declined to acknowledge whether such an instruction existed. Later, it admitted its existence. Then the government asked a judge to hold a hearing in secret and preclude Gilmore's lawyers from seeing the regulation they sought to challenge, the contents of which seem to be pretty widely known.
"It's a rubber stamp. TSA security directives are -- plural -- sensitive security information and not subject to public disclosure," Davis said.
How, then, is someone to challenge in court a law he's not allowed to see?
"I have no idea," Davis said. "If a passenger doesn't wish to show ID prior to getting a boarding pass, that's something they're going to have to take up with the air carrier. And the air carrier is required to obtain government-issued identification."
That, says Gilmore's lawyer, Jim Harrison, is the enigma of the case: "It's about the ability of the citizens of this country to be able to move about the country, to move about freely, without being subject to laws they can't see."
The legal cul-de-sac erected around airport security is not limited to Gimore's deliberately chosen fight. In October 2001, at San Francisco Airport, Arshad Chowdhury, born and raised in the United States, was surrounded by security agents and kept off a Northwest Airlines flight. He was trying to get back to Carnegie Mellon University, where he was a graduate student.
Chowdhury's last name sounded somewhat like another name on the no-fly list. He could never get an explanation. He filed suit against Northwest, but, to date, his court fight has been with the government, which has pleaded Sensitive Security Information.
To sue Northwest for racial profiling, Chowdhury must first sue his own government for the rules Northwest will plead it was enforcing. ....
The elegance of Gilmore's thinking is that knowing someone's ID does not prevent the person from committing a terrorist act. The 9/11 hijackers had driver's licenses. Knowing someone's identity, as Gilmore argues it, adds less to a security than it takes away from a traveler's protection from authority that might oppress simply because it can. ....
(Dennis Roddy can be reached at firstname.lastname@example.org or 412-263-1965.)`