Appeals Court hearing on airline ID requirement

As I mentioned yesterday, the 9th Circuit U.S. Court of Appeals heard oral argument this morning in Gilmore vs. Gonzales (originally Gilmore vs. Ashcroft ), the U.S. Federal case challenging the secrecy and the legality of the requirement for would-be travellers to “show ID” (a surprisingly ambiguous phrase) as a precondition to travel within the USA by airline common carrier or to the exercise of their Constitutional right, under the First Amendment, to assemble by means of air travel.

Fortunately the 9th Circuit sits in San Francisco only a few blocks from my office at Airtreks.com South of Market, and I was able to take the morning off to attend the appellate hearing. (Currently the court uses the elegant and functional former San Francisco main Post Office and District Courthouse where I used to collect the mail for the National Resistance Committee from our post office box. But the 9th Circuit has a hideous new highrise fortress, making astonishingly inefficient use of its space, under construction across the street for its future home.)

Most of the hearing was devoted to procedural and jurisdictional issues of little interest to the majority of my readers who, unlike me, probably don’t read law for fun.

There is no required calendar for the Circuit Court’s decision, but it probably won’t come for at least a month or two, perhaps longer.

The good news, as I read the tea leaves of the argument, is that it appears that John Gilmore and the cause he has taken up will eventually get their day in court, and may get it somewhat sooner rather than later: the 3 judges seemed inclined, if they rule that the case should first have been filed with them instead of with the district court, to order it transferred to their jurisdiction, rather than ordering it dismissed and making Mr. Gilmore start over from scratch in the circuit court.

The bad news is that it seems that the judges just don’t get it on two points that are key to the case:

First, the judges seemed to have no recognition of air travel or travel in general as an act of assembly, an activity protected under the First Amendment, or a right protected by Federal law. They seemed to assume that ID is not required for other means of travel (ID is increasingly required, as Gilmore’s attorney Jim Harrison pointed out, for travel by every means from Amtrak and Greyhound to passenger ships and ferries; the government’s lawyer suggested that Mr. Gilmore could “hire a chauffeur” if he didn’t want to show ID, which might be characterized as the “Let them eat cake” theory of travel rights), and that Mr. Gilmore “could just leave” the airport if he didn’t want to show ID to travel by air.

But as I’ve noted earlier in relation to this appeal, airlines can be licensed under U.S. Federal law only on condition that they agree to operate as “common carriers”. Unlike some other businesses, they can’t say, “We reserve the right to refuse service”, or tell a would-be passenger to take their business elsewhere. It would be a Federal offense for an airline to refuse to transport (as both Southwest and United did in Mr. Gilmore’s case) anyone who is willing to pay the fare in their published tariff and complies with their published conditions of carriage, as that tariff and those conditions are filed with the government.

Second, none of the judges seemed to recognize the distinction between “asking for ID” and “requiring the showing of ID”, despite the crucial role that distinction played in the Supreme Court’s decision on ID demands earlier this year in Hiibel vs. Nevada .

ID as “identity” (a concept or personal attribute) is not the same as ID as “a document or other credential providing evidence of one’s identity” (an object).

I pointed this out at the time of the Hiibel decision, and Professor Michael Froomkin noted the same point then and again more recently in relation to the case of Deborah Davis, who was scheduled for arraignment tomorrow in Denver for refusing to show ID in order to ride a public bus but against whom charges were dropped at the last minute.

There are four distinct potential components to an “ID” rule, each raising different legal issues and potentially subject to different legal analysis: (1) asking for verbal self-identification (the right to ask a question); (2) demanding such self-identification (the right to impose sanctions, such as more intrusive search, as a penalty for silence or an unsatisfactory answer, which raises the privilege against self-incrimination); (3) demanding that tangible credentials of identity be produced and displayed for visual inspection — or, perhaps, that RFID credentials be removed from an RF shield and exposed to RF interrogation (it’s the demand for the production and display of the tangible object, and its exposure to visual or RF inspection, that constitutes a “search” and raises 4th Amendment issues); and (4) requiring that the proffered credential satisfy specified criteria of acceptability as a condition of being permitted to take some action or avoid some sanction (which raises questions of due process in how that determination is made, as well as its permissibility as a precondition to exercising any legal right such as the right to assemble or to travel by common carrier).

The Supreme Court explicitly recognized at least part of this set of distinctions. It found that Hiibel had only been subjected to a (permissible, it found, although in circumstances different from those in Mr. Gilmore’s case) demand to identify himself verbally (items 1 and 2) above, and not to a demand to produce or display any identity documents. As a result, the Supreme Court found that the ID demand, being limited to a demand for verbal self-identification, didn’t constitute a “search”. Not being presented (they said) with circumstances 3 or 4 above, the Supreme Court didn’t address or decide any of the issues they would have raised.

(The Supreme Court got the facts wrong. The video clearly shows that Hiibel was asked repeatedly, “Show some ID”, not “State your name”. That was a search, not just an interrogation. But the precedent is applied on the basis of the “facts” as the Supreme Court found them, not the actual facts.)

In today’s hearing, Judge Trott in particular kept asking questions like, “What’s your best case for the proposition that asking for ID is a search?” While Mr. Harrison immediately answered, “Hiibel”, it wasn’t clear that Judge Trott recognized the critical distinction in the Hiibel decision between the (permissible) questioning in that case, and the (potentially impermissible) search embodied in a demand for tangible credentials.

Mr. Gilmore had, in fact, identified himself to the airlines prior to attempting to travel: In each case, he had presented a ticket showing his name. It’s impossible under IATA standards to issue tickets without specifying on them the name of the passenger. Since those tickets were, under the contractual conditions in the airlines’ tariffs, non-transferable, it would have been a breach of contract and perhaps a Federal crime (fraud and/or attempted theft of services) for him to attempt to fly on those tickets if he were anyone other than the person for whom they were originally purchased.

I don’t know if Mr. Gilmore was verbally asked, or stated, his name — so far as I can tell, the record is silent on that point. But by presenting himself for transportation, and presenting those tickets as entitling him to passage, he was implicitly making a legally binding self-declaration as to his name and identity.

This case is not, therefore, about anonymous travel, an interesting but irrelevant side issue that was raised in this morning’s argument. It’s not about whether Mr. Gilmore could be asked for ID (he was, in effect, when he was asked to present a name-identified non-transferable ticket) or whether Mr. Gilmore could be sanctioned for failing to identify himself (he did identify himself).

The issue in this case is specifically about the legality of the search embodied in the demand for tangible evidence of identity, and the lack of due process embodied in the secrecy of the “rule” requiring production of ID credentials (whose existence, even today, government counsel would “neither confirm nor deny”) and the lack of any publicly-disclosed criteria as to what evidence of identity is sufficient, or how its sufficiency is to be determined.

A demand, by or at the behest of the government, to take out something on or about your person (but not otherwise in public view), and display it for their inspection, is a search — whether that demand takes the form of, “If you have any pot in your pockets, show it to me,” or “If you have any ID cards in your pockets, show them to me”.