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'Gilmore v. Gonzales': Of "secret laws" and showing your ID at the airport

I'm now so paranoid about losing my ID on airplane trips that carrying my driver's license just doesn't cut it. I mean, what if I lost it? Hey, I've lost worse in World's Biggest Purse.

So I bring my passport. And a copy of my passport. And, just to be safe, a copy of my driver's license. But here's the part that makes me realize I've completely lost it: The copies are in plastic baggies. Separate ones. Just in case, somehow, a pool of water materializes in any airport I might visit, and said documents manage to escape World's Biggest Purse.

Perhaps this is why I am so impressed by John Gilmore's decision to put his many millions of dollars behind the question "why do we have to show ID?" Gilmore is now in his third year of litigating the federal requirement that commercial airplane travelers show ID before boarding planes (see Justin Scheck's story). Gilmore argues that this law is an invasion of his privacy. At the end of last week, Gilmore v. Gonzales made its latest court appearance, this time in the 9th U.S. Circuit Court of Appeals. His lawyers "asked the judges to remand the case to the trial court, where a record could be established for the 9th Circuit to review," and plans to challenge all transportation-related ID checks if they do, Scheck writes. The government, "on the other hand, asked for a complete dismissal -- or for the 9th Circuit to address it directly," Scheck adds.

There's been lots of blawgging fallout about the hearing, and not just about the Dr. Seuss socks Scheck saw peeking out from under Gilmore's Birkenstocks. The Washington Monthly's Kevin Drumm wrote on Saturday:

"John Gilmore is suing the government because he doesn't think he should be required to show ID before boarding a commercial flight. I think this is stupid and he deserves to be thrown out of court.

"At least, that's what I'd think if it weren't for this:

'The Bush administration ... claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it. ... The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

"WTF? Call me naive, but I've never heard of a secret law. I've heard of secret courts and secret evidence -- which are bad enough already -- but not secret laws. When did this happen?" Much more here. (For Gilmore's account, read the official Web site, where Gilmore or one of his team describes the original incident at San Francisco International Airport.)

I don't think it's as bad as you think it is, responds Volokh Conspirator Orin Kerr to Drum. Kerr takes on the case in a lengthy post, from which I'll excerpt this nugget:

"I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.

"At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.

"Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file [to] a version of its brief under seal ... "

What do you think? Does it make you feel better to show your ID? Is it an invasion of your privacy? Both? I welcome your thoughts. I also recommend the comments on Drumm's and Volokh's blogs.

Posted by Laurel Newby on December 12, 2005 at 03:21 PM | Permalink | Comments (0) | TrackBack (0)

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