Secret ID Law to Get Hearing

Wired reports:

Although John Gilmore lives just five blocks from San Francisco's Department of Motor Vehicles, his driver's license is expired. On purpose.

The outspoken, techno-hippie, wealthy civil libertarian doesn't want to give his Social Security number to the DMV.

Neither will he show his driver's license at airports, or submit to routine security searches. This refusal to obey the rules led him to file suit against the Bush administration (Gilmore v. Gonzales) after being rebuffed at two different airports on July 4, 2002, when he tried to fly without showing identification. One airline offered to let Gilmore fly without showing ID, but only if he underwent more intensive security screening, which he declined.

On Thursday, Gilmore and his lawyers will get 20 minutes in front of the 9th U.S. Circuit Court of Appeals to make their argument against identification requirements and government secrecy, in a case that time and shifting public opinion has transformed from a quirky millionaire's indignant protest into a closely watched test of the limitations of executive branch power.

"The nexus of the case has always been the right to travel," Gilmore said. "Can the government prevent Americans from moving around in their own country by slapping any silly rules on them -- you have to show ID, you have to submit to searches, you have to wear a yarmulke?"

Gilmore has sunk thousands of dollars into fighting identification requirements, but he also personally committed to not traveling in the United States if he has to show identification.

So Gilmore has not taken a train, an intercity bus or a domestic flight since July 4, 2002. He still flies internationally.

Gilmore describes himself as being under "regional arrest," and said he would love to drive and fly again.

"I'm a millionaire," Gilmore said. "I can do whatever the fuck I want, right? Why should I run around without an ID? Because no one else was paying attention to that and letting our liberties slip down the drain. I figured it was worth some amount of money and some amount of personal sacrifice to keep a free society."

Gilmore has long been a prominent figure in the privacy and civil liberties communities -- he co-founded the Electronic Frontier Foundation. But many civil liberties advocates begged Gilmore not to file suit in 2002 because they were certain he would lose and set bad case law, according to Gilmore's lawyer, Jim Harrison.
Things might be different in late 2005.

"The same people that were telling John that you really should not do this while the country is inflamed are the same ones that filed friend-of-the-court briefs to the 9th Circuit," Harrison said.

Gilmore also thinks the mood of the country has changed. "It is now considered patriotic to criticize the president," Gilmore said.

While civil liberties groups now publicly back Gilmore's challenge to government secrecy, many privacy advocates still privately grumble that Gilmore's case is not the best vehicle for challenging identification requirements.

On Thursday, Gilmore will argue that the government's secret identification rules -- no federal law compels travelers to show ID -- and no-fly list infringe on his First Amendment rights, but don't make the country safer.

In addition, government lawyers long denied the existence of the rule -- which predates the Sept. 11 terrorist attacks -- even though there are signs in airports cautioning passengers that they are required to show identification.

The government recently switched tactics, acknowledging the rule exists but arguing that the identification requirement is a law-enforcement technique.

So far, the government has refused to show Gilmore the order compelling airlines to ask for identification, saying that the rule is "sensitive security information," a security designation that was greatly expanded by Congress in 2002, allowing the Transportation Security Administration wide latitude to withhold information from the public.

Gilmore argues that secrecy and the power of the "sensitive security information," or SSI, designation is to blame for the repeated privacy scandals at the TSA.

"TSA and DHS in general have set themselves up to be insulated from criticism, to have their inner workings be invisible, because they can pull this magic SSI shield over anything they do," Gilmore said. "And what you see are the natural consequences of that kind of secrecy, which is that incompetence is never detected and corrected."