USA Court of Appeals ruling on airline ID requirements

Yesterday the U.S. Court of Appeals for the 9th Circuit, here in San Francisco, released its decision in Gilmore vs. Gonzales , the federal lawsuit challenging the secret USA Federal “security directive” which requires … well, we still don’t know what it actually requires, even after the court reviewed it in camera (secretly, in chambers) and used it as part of the basis for its decision against would-be air traveller John Gilmore.

There are many things wrong with the decision — some of which will, I hope, be raised in future lobbying, litigation, and direct action by the newly-formed Identity Project .

The 9th Circuit Court decision reflects all of the misunderstandings of the facts, the law, and the applicable Supreme Court precedents that I pointed out in my report on the oral argument last month before the 3-judge panel that issued yesterday’s ruling.

The judges misunderstandings were compounded by their decision to jump from an appeal, motions, and oral argument concerning standing and jurisdiction to a decision on the facts and the merits , without there ever having been any discovery, hearing, cross-examination, or fact-finding proceeding of any sort, either before the District Court or before the Court of Appeals. The only factual evidence considered by the Court of Appeals, so far as I can tell, was evidence about the USA government defendants’ (purported) policies, submitted and reviewed by the judges secretly, after the oral argument, and unable to be reviewed, rebutted, or cross-examined by Gilmore or his lawyers.

Some of the Circuit Court’s confusion is understandable, in the absence of any record of a fact-finding proceeding. For example, in describing the “facts” of the case, the Circuit Court says first that Gilmore “was not allowed to fly … because he refused to present identification to Southwest Airlines when asked to do so,” but later bases its decision in part on the quite different “fact” that “Gilmore refused to allow his bag to be searched by hand and was therefore barred from flying.” It’s unclear from the limited record whether he was denied transportation because he wouldn’t present ID, or because he wouldn’t submit to a more intrusive search. But that’s a material factual dispute which should have gone to trial, not something that should have been presumed (or ignored) by the Court of Appeals.

Compounding this error, the Court of Appeals claims in its decision that a notice reading “PASSENGERS MUST PRESENT IDENTIFICATION” gave adequate (and accurate?) notice of a policy which, so the Court of Appeals concludes (on the basis of its in camera inspection of documents submitted by the government defendants) did not require that passengers present ID credentials, but allowed them the alternative of submitting to a more intrusive search if they wanted to fly without presenting ID. Either the “notice” is inaccurate, or the Court mis-states the law. In either case, the Court’s conclusion — that such a notice stating categorically that something is required provides “adequate” notice that it isn’t required — is indefensible.

Throughout its opinion, the Court of Appeals fails — as it failed during oral argument — to recognize the distinction made by the Supreme Court last year in Hiibel vs. Nevada , and which should have been decisive in Gilmore vs. Gonzales, between the permissible request for (verbal) self-identification and the impermissible demand for the production and display for inspection of tangible credentials or evidence of identification (i.e. search). The opinion, revealingly, never even attempts to define what it, or the secret regulations, or the airlines in their actual practices, variously mean by the vague and ambiguous term “identification”. And the Court in its opinion — again, as at oral argument — repeatedly confuses asking for identification with demanding identification or imposing sanctions for not providing it.

Assuming that the Supreme Court won’t choose to hear a further appeal, many issues remain for future litigation.

On 4 July 2002, at the time of the events that gave rise to Gilmore vs. Gonzales, the “conditions of carriage” included in the published tariffs of most airlines — including Southwest and United, the two at issue in the lawsuit — were silent with respect to passenger identification. And a large proportion of airline tickets were still paper tickets.

Since then, paper tickets have been phased out entirely by some airlines, and in large part by others, in favor of electronic tickets which have many drawbacks for travellers but advantages for airlines. Electronic tickets give airlines an excuse, independent of government-imposed security/surveillance directives, to try to identify passengers to enforce the rules long included in their tariffs that tickets are not transferable from one person to another. Whether that is sufficient legal justification for demanding what sort of evidence of identity from passengers will be, so far as I can tell, a case of first impression.

While Gilmore vs. Gonzales has been pending, most airlines based in the USA, and some based elsewhere in the world, have added clauses to their conditions of carriages requiring passengers to, in the language that most have adopted, “provide positive identification” on demand. (Demand by whom is not specified, so it isn’t clear if this refers to demands by the airline, the government, or either.) Whether inclusion of these clauses in the tariffs of airlines or other common carriers is contrary to the “common carrier” clause of the USA Airline Deregulation Act of 1978, or parallel laws for other common carriers (railroads, ferries, bus lines, etc.), or the assembly clause of the First Amendment to the Constitution of the USA, remain to be tested in future litigation. (See my advice here in case you are ever refused transportation by an airline or other common carrier.)

From the start, I expected that Gilmore vs. Gonzales (originally filed as Gilmore vs. Ashcroft prior to the change of Attorneys General, if you are searching for the earlier history of the case) would be decided on the basis of the airlines’ terms and conditions, as interpreted in light of the common carrier laws and the assembly clause of the 1st Amendment. But given how badly the 9th Circuit panel botched this case, perhaps it’s best that it didn’t touch on any of these issues, leaving them too as questions of first impression for some other, future court that will, perhaps, be a bit more diligent in its factual and legal inquiries.