Airport ID Checks Constitutional

chill wrote to mention the decision handed down from the 9th Circuit U.S. Court of appeals in the case of Gilmore vs. Gonzales. The court found in the government's favour, saying "We hold that neither the identification policy nor its application to Gilmore violated Gilmore's constitutional rights, and therefore we deny the petition ... The Constitution does not guarantee the right to travel by any particular form of transportation."

No particular, but any?

[Russ Nelson (33911)]

Is there currently any form of travel where you don't have to submit to a "Papers Please" check? You have to have a driver's license to drive. We know about airplanes. If busses and trains also require ID, then how can you travel anonymously? I suppose that most taxi drivers won't check your id, but they'll sure want to check your checkbook before driving you cross-country.

If you can't travel anonymously, then you in fact do not have an independent right to petition your government.
-russ

Re:No particular, but any?

[techno-vampire (666512)]

If you can't travel anonymously, then you in fact do not have an independent right to petition your government.

What in the world has the ability to travel anonymously have to do with your right to petition the governent? There's nothing in the Constitution about the first, one way or the other but the second is guarenteed.

Re:No particular, but any?

[Reziac (43301)]

If you're forced to declare your identity before being allowed to travel, you can be singled out and prevented from travelling to a specific destination, say, the court in which you plan to make your appeal.

You could also be singled out and prevented from voting. In fact this used to be done in some areas, to prevent certain special interest groups (frex, racial minorities) from reaching the polls.

If the ruling had stated "a private carrier can require whatever they damn well please", I wouldn't have a problem with it. But a ruling that we don't have a Constitutionally-enumerated right of travel is an incredibly dangerous precedent, as it is far too extensible into every aspect of our lives. Legally, it means you have no right to *so much as walk down the street* without showing your papers.

Amtrack, yes, Greyhound not obviously

[Russ Nelson (33911)]

I did some more research,and Amtrack requires a photo ID. Greyhound does not obviously require a photo id from reading their website. In practice they may have the same secret law requirements; who can say, since it's a secret?
-russ

Re:No particular, but any?

[ReverendLoki (663861)]

There is NOTHING in the constitution that guarantess you can "travel anonymously". It isn't even implied. Your statement has not basis in fact or reality.

There also is nothing in the Constitution about the right to use the bathroom without the supervision of a Government agent. You don't value that, now do you? Would you be upset if that ability were taken away?

How about the ability to travel more than 15 miles away from your home with applying for special permission in front of a Federal Review Board?

The Constitution isn't just remarkable for the rights it guarantees for citizens, but also that it (supposedly) restricts the rights of the government to what is specifically stated in the Constitution. Ideally, if the Constitution does not say that the government can regulate something, then they cannot regulate that thing.

In other words, your argument "has not basis in fact or reality"

Re:No particular, but any?

[Baricom (763970)]

That's okay. I don't pay attention to analogies anyway unless the analogist shows me a government-issued photo ID with signature to prove he or she is not a terrorist.

Re:No particular, but any?

[Chagrin (128939)]

Saenz v. Roe, there are three components to the right to travel:

        (1) "the right of a citizen of one state to enter and leave another state";
        (2) "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state"; and
        (3) "for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state."

Re:No particular, but any?

[AKAImBatman (238306)]

Privacy is not the same thing as anonymity. At the very least the other party of the transaction (the airline) has a right to know who you are. Privacy dictates that they be careful who they share it with. However, since most airlines are subject to government regulation, they are considered a public form of travel. If you want privacy, charter a plane who will keep your trip confidential. (At least until they're supeonaed.)

Re:No particular, but any?

[Jherek Carnelian (831679)]

you don't have to submit to a credit check for a hamburger either, but you do when you buy a car.

That's funny - I have bought 3 cars so far and not once did I need to "submit" to a credit check by the seller or anything even vaguely resembling one.

the airline has "a right to know who you are" if that's the condition they sell their tickets under.

Does that right include blaming the government and claiming that the condition is not their policy but the government's?

Re:No particular, but any?

[SilverspurG (844751)]

Indeed. However, if you read the histories presented on this site [articlev.com] it becomes quite clear that the SCOTUS has been systematically castrating the meaning of the 9th and 10th Amendments for at least 100 years.

It's a sad state of affairs when hand-picked Supreme Court justices reduce the Constitution to little more than historical triviality. We might as well live in a despotic empire with token popular elections for feel-good purposes.

Re:No particular, but any?

[ChildeRoland (949144)]

http://www.papersplease.org/hiibel/index2.html [papersplease.org]

I think this website gives plenty of info. We _are_ in such a society, and the courts have upheld it.

Re:No particular, but any?

[ChildeRoland (949144)]

Also, as of Dec. 30th, there was a bill on Gov. Bill Taft's desk, called the Ohio Patriot Act which would require citizens to show ID upon request or face being arrested.

"The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

WEWS reported it would also pave the way for everyone entering critical transportation sites such as, train stations, airports and bus stations to show ID."

http://nievedenoche.gnn.tv/headlines/6851/Show_ID_ Or_Go_To_Jail [nievedenoche.gnn.tv]

Most cops in any state now will arrest you for not providing name and birthdate, regardless of if there is a law requiring it.

Re:No particular, but any?

[Dausha (546002)]

"Minding your own business, causing no trouble, cops come up, and demand your papers. They detail you, question you about your intentions in a particular location and use your identification to establish if you have any wants, warrants, or are a known criminal type who may be in the area to cause trouble.

Unamerican, huh?"

Actually, quite valid and entirely American. IANAL, but if you are in public, the cops can question you, and you can walk away. If they physically detain you, then you have them for false imprisonment and illegeal seizure. If you resist arrest at that point, then false imprisonment flies out the window. If they ask for your identification, you can refuse. If you comply, then you consented--entirely Constitutional. You can also challenge them. Without your consent, a warrant, then they must have a reasonable suspicion that there is a crime afoot and you're the culprit.

If they did all this to you, then you should file suit or stop complaining about it. Except, it happened two years ago, so the statutory limitations period has likely expired in your jurisidiction.

"When a law enforcement officer stops you anywhere, and you are not free to walk away, you are technically under arrest. If you don't believe it, try walking or driving away next time a law enforcement officer asks you to stop. You'll then be charged with any of a variety of charges, which will land you in jail for months to years."

Except, you can walk away. If you try it and they arrest you, then you can sue them for abuse of police power and any other number of torts. They may charge you with various crimes, but the prosecutor has to press them. Then, go for malicious prosecution. Especially when you a have a bouncer and other witnesses.

Re:No particular, but any?

[typical (886006)]

"Fahrenheit 451 was the product of five short stories. One short story that was used was inspired after Bradbury and a friend were walking around Los Angeles late one night. A police officer stopped and questioned them. A smart-alecky Bradbury told them they were just walking and explained how illogical it was for them to be planning a robbery, especially on foot. The police officer said, "Just walking? Well, don't do it again." Afterward, Bradbury wrote "The Pedestrian," a story about a future time when all pedestrians are treated as criminals. A political magazine called The Reporter published it after numerous rejections. "The Pedestrian" became the foundation on which Bradbury built his protagonist, Montag, of Fahrenheit 451."

From here [suite101.com].

Re:Huh?

[arbitraryaardvark (845916)]

1) Explain how my inability to travel anonymously prevents my petitioning the goverment for the redressing of grievances
2) Point to where in the constitution they said you were guaranteed anonymity

1)'s a little tricky. It's not so much "prevents" as chills and infringes on.
The right to travel to the seat of government to petition for redress is one of the privileges and immunities protected by the 14th amendment p&i clause.
2) We have the first amendment because Peter Zenger was busted for running a printing press to print anonymous criticism of the king's goons.
Talley v California, 1960, explains that the right to free speech includes anonymity and privacy. Thomas, concurring in McIntyre v Ohio Elections Commission, explains the history in more detail.
The other two cases that discuss the constitutional right to anonymity are American Constitutional Law Foundation and Watchtower v Stratton. You can read those cases at majors.blogspot.com [blogspot.com] or findlaw.com.

Stupid

[LocalH (28506)]

The Constitution does not guarantee the right to travel by any particular form of transportation.

So, I guess Judge Paez lives in that fantasy world where the rights of the people must be explicitly given within the Constitution, or they don't have them.

Re:Stupid

[globalar (669767)]

Sorry, you're argument does not apply here.

Paez is an appeals court judge. He doesn't make the law and he doesn't decide what the Constitution means. He is only interested in upholding existing law and existing Constitutional interpretation (such as it is). If a case does not seem to fall within these limits (i.e. the issue is not "Constitutional"), he is obliged to only consider whether the trial was properly conducted. These are the checks an appeal court handles in the system.

The Constitution is not meant to include *all* our rights. That was by design. Just because a right is not in the Constitution does not mean it doesn't exist or can't exist. It's sloppy interpretation to say any given right that we "should" have is somewhere in the Constitution if only we can extrapolate it. Not all the rights we want/need/deserve are there.

The fact that the Federal system may not be working right, that Congress may have no interest in individual rights, etc. does not change the job of an appeals court.
 

Re:Stupid

[Moofie (22272)]

This argument is precisely why some of the Framers opposed the Bill of Rights.

The Constitution does not say "these are the things people get to do." It says "These are the things that the Government is not allowed to do."

Of course.

[BrookHarty (9119)]

"The Constitution does not guarantee the right to travel by any particular form of transportation."

Time to get out the horse and buggy, with that federal logic...

Anonymity?

[AKAImBatman (238306)]

From the Website: "A decision is expected within the next few months. At stake is nothing less than the right of Americans to travel anonymously in their own countr"

I'm sorry, but case after case has shown that Anonymity is not constitutionally protected. If you can get someone to front for you (e.g. a newspaper), then they may choose to withhold your identity; possibly facing legal pentalities when they are court ordered to provide it. People seem to have this idea in their heads that Freedom of Speech == Freedom of Anonymity. Nothing could be farther from the truth.

Re:Sorry, but you're wrong...

[bentcd (690786)]

A secret law in a free country. Now that should give you pause.
Heh. What amuses _me_ (amuses because I'm a cynical bastard) is that a US federal organization (I have no idea which one) arrested a US citizen, held him illegally without providing legal counsel, without charging him with anything in particular and without even recognizing his human rights (much less any US constitutional rights), for an extended period of time, eventually concluded he probably wasn't all that dangerous anyway, and then finally released him on the explicit condition that he renounce his US citizenship. That this became publicly known and that no one in the US really cared much about it.
Not only do US citizens not have any rights in the practical sense these days, but they don't even seem to care about it in the least.
(The idealist in me is begging for someone to speak up and prove this story to be wrong in some important way . . .)

ID Check Legal, What about baggage?

[johnkoer (163434)]

This case states that checking ID is legal, however I am wondering if they tried the same thing against "random" baggage searches, would it hold up? According to this ruling, since there are other means of transportation, the airlines can dictate checking IDs. However, the people who are checking the IDs and the baggage work for the government, so couldn't this be considered an unconstitutional search, especially in the baggage scenario?

Probably constutional

[Sycraft-fu (314770)]

For the same reason, that it's optional. The limitation on search and seziure has been interpreted to mean that police can just go and search your house and such for no reason, not that they can't ever search you or your things.

Also the amount of reason needed is variable. Since your home is considered to be very private, a warrant is mandidated. Cars are much less private, so probable cause is usually the standard (varies by state). Means the police need a specific reason and something to back it up, but they don't have to go in front of a judge first. Now if you go some place like a courthouse, then it's not a question, you WILL be searched, and so will your bags.

Constitutional Right to Hide in a Corner

[Carcass666 (539381)]

I would hardly consider myself a conservative (at least in the Neocon sense), but it is a but discouraging to have individuals keep asserting "constitutional" rights which are completely illusory.

There is no constitutional right to complete anonymity, there never was. There is protection in the Fourth Amendment against unreasonable search and seizure. Asking for your identification before boarding a plane is no more unreasonable than asking for your ID when making a credit card transaction, if for nothing else to ensure you are not stealing somebody else's ticket (notwithstanding the security issues).

When the EFF (or anybody else) raises a fit over something that is this unobtrusive, it makes it more difficult for voices to be heard when our government is so outside the law it feels the need to bypass warrants, even those issued from secret rubber-stamping courts. Those who argue "security above all else" simply lump civil libertarians in with nut jobs who want to be as anonymous in real life as they are when playing Warcraft.

Re:Constitutional Right to Hide in a Corner

[The Man (684)]

Asking for your identification before boarding a plane is no more unreasonable than asking for your ID when making a credit card transaction, if for nothing else to ensure you are not stealing somebody else's ticket (notwithstanding the security issues).

You're ignoring the real issue. Let's suppose I hand a ticket agent $200 in cash for a ticket on the next flight. It doesn't need to have my name on it at all to prevent theft (consider bearer bonds, tickets to a concert, or good old cash - those don't have your name on them either) but a secret rule forces not just the airlines but also the now government-employed screeners to check your identity. Why? If it were really about verifying the identity of e-ticket holders, the airlines would have justification, and they'd be the ones making the rules. Since they don't, and they're not, this is a legitimate legal problem. A private airline can impose whatever conditions it wants when offering me its services; the government doesn't have that right. That's the price it must pay for its monopoly on power.

two problems

[belmolis (702863)]

I have two problems with this decision. First, while I won't argue that there is an absolute right to anonymity, I have yet to hear an argument for the proposition that checking ID makes flying safer. The 9/11 terrorists had valid ID. If the government is using ID as a substitute for searches or X-ray or whatever is actually needed, they're kidding themselves.

The larger problem with this decision is the court's acceptance of the claim that there can be secret laws and regulations and specifically that this regulation is legitimately secret. The very idea of secret laws and regulations is inconsistent with open, democratic government. Moreover, not a shred of justification has been offered for the secrecy of this particular regulation. (The only situation I can imagine in which a secret regulation might be legitimate is when it has to mention something whose existence is a legitimate secret, but even then it would seem that the regulation could be revealed to those that it affects (since they would know about the secret anyhow) and that it should be possible to publish the regulation in a more abstract form (e.g. classifying some class of weapons).) What conceivable basis could there be for classifying a regulation requiring passengers to produce ID?

Man o man...

[Eric Damron (553630)]

From the article:

"He asked to see the law demanding he show his 'papers' and was told after a time that the law was secret and no, he wouldn't be allowed to read it."

The constitution may no guarantee that a person be allowed to travel in any particular manner but I'm pretty sure "secret laws" are not constitutional and that is the real issue here.

US Gestapo: "Sir you are under arrest."
Victim: "What for?"
US Gestapo: "You broke the law Sir"
Victim: "What law?"
US Gestapo: "The secret law that we won't tell you about."
Victim: "I didn't know we even had secret laws!"
US Gestapo: "Ignorance of the law is no excuse Sir. Come with us."
Victim: "I want my lawyer!"
US Gestapo: "We aren't charging you Sir and you don't get to talk to your lawyer. Come with us."

Re:Man o man...

[gstoddart (321705)]

Close ....

More like ...

US Gestapo: "Sir you are under arrest."
Victim: "What for?"
US Gestapo: "You broke the law Sir"
Victim: "What law?"
US Gestapo: "The secret law that we won't tell you about."
Victim: "I didn't know we even had secret laws!"
US Gestapo: "Ignorance of the law is no excuse Sir. Come with us."
Victim: "I want my lawyer!"

US Gestapo: Since we're detaining you under a secret law, you don't get a lawyer.
Victim: But I'm a citizen.
US Gestapo: I'm sorry sir, but the law you're charged under strips you of your rights as a citizen, but we can't tell you any more than that.

Under the 'new' laws, there have been US citizens who have been held with neither trial, lawyer, nor charge under suspicion of being an "enemy combatant". Despite the Constitution saying you can't actually do that.

Sadly, the current political climate has allowed them to completely bypass what would have otherwise been de jure rights. It's quite troubling actually.

Remember,

[mobby_6kl (668092)]

it's not fascism if we do it.

Missing the Point

[Aidtopia (667351)]

The article and the summary are missing the point. This was Gilmore v. Gonzales, not Gilmore v. the airlines. The argument, as I understand it, is that there is no published law or rule that says passengers have to show identification. The TIA says there is such a rule, but that it's a secret for security purposes. Gilmore argues secret laws are unconstitutional. I tend to agree with Gilmore.

Yep... From the ruling

[by Anonymous Coward]

The ruling [uscourts.gov] states (bold is mine):

The Government contends that the district court
lacked subject matter jurisdiction to entertain this action
because, under 49 U.S.C. 46110(a), Gilmore's claims can
only be raised by a petition for review in the courts of appeal.
Defendants also contend that Gilmore lacks standing to chal-
lenge anything other than the identification policy, such as
the Consumer Assisted Passenger Prescreening System
("CAPPS") and so-called No-Fly and Selectee lists.

And, worse (bold is again mine):

After reviewing the
sensitive security information materials that the Government
filed with this court ex parte and in camera, we agree with the
Government that the district court lacked jurisdiction and that
Gilmore had standing to challenge only the identification pol-
icy.

Let's quickly recap what this all means in handy bullet-point format:

• A U.S. citizen has been denied standing to challenge government policies affecting him
• The court system apparently doesn't have an issue with ex parte proceedings, wherein only the court and one party are involved. If you can't see why this is bad...
• No citizen, including the plaintiff in this case, can be informed as to what the in camera/ex parte material (the secret laws) say.

This court case tells us there are secret laws on the books, and we as citizens covered under them are not privy to them. This is bad, bad news.

wtf

[hunterx11 (778171)]

I can't honestly say that I'm terribly disturbed that people are scrutinized more if they don't have ID when flying on a plane.

But having secret laws is totally, categorically unacceptable. There should be a Constitutional amendment against these sort of regulations. This isn't similar to a police state tactic, it is a police state tactic. There is no slippery slope; there is a motherfucking cliff that is being jumped off blindly in the hopes that there will be water instead of rocks at the bottom so we might only injure ourselves instead of dying.

ID checks vs. detectors vs. strip-searches...

[TheRealStyro (233246)]

I'll have to say that this lawsuit was made in poor judgment. The government & business has every right to expect you to produce identification before boarding an airliner. This ID check is not unreasonable nor troublesome to any passenger. Getting stopped/delayed from boarding because a single-dimensional ID check matched on a suspect ID is just stupidity on the part of the TSA.

Being subject to having carry-on baggage searched and walking through a metal detector also is not particularly unreasonable. Neither, IMHO, would be being scanned with a hand detector and/or 'sniffer' device (to detect drugs/explosives handling). It would be normal security for what amounts to being transported in a flying bomb with no/limited in-flight security.

A strip-/cavity-search would be where I would draw the line. Unless you provide me with very detailed information about your suspicions about what I am supposedly hiding on/in my body, I am not going to cooperate in any way whatsoever. If I passed a metal detector test, a hand scanner test and a 'sniffer' test, then you will not be able to provide me with any reasonable explanation for needing a strip-search (get a warrant for a cavity-search). Barring any reasonable explanation, it is a fourth amendment buster and I will not submit to it. I will leave and expect a full refund from the airline and/or TSA (or search authority) and that they should expect a lawsuit.

For the record, I am an independent with liberal leanings. I defend my civil, political and human rights when I believe they are being threatened.

Re:ID checks vs. detectors vs. strip-searches...

[Jherek Carnelian (831679)]

This ID check is not unreasonable nor troublesome to any passenger.

So they check your ID and what good does it do?
Are they checking to make sure your ID isn't stamped "terrorist" or "manic-depressive?"

Just because some action is not particularly troublesome for most people does not make it at all reasonable.

A strip-/cavity-search would be where I would draw the line.

Funny that -- at least such a search will guarantee that you are not carrying anything dangerous to your fellow passengers, unlike an ID check.

Your reasoning is just rationalization for behaving like a lemming instead of thinking about actual security.

ID not checked anymore, and why would that help?

[dazzla_2000 (204679)]

For a while now, when flying domestic the airlines have not been checking ID. ID is only checked by the TSA.

Anyhow, how can checking ID possibly help stop terrorism?

1. Boarding cards, especially online are incredibly easy to fake.
2. Fake ID is easy to come by.
3. If someone has decided they are going to fly a plane into a building and kill themselves in the process why would they care about showing their ID? Or buying a ticket with their real name on it?
4. etc..

Your papers are not in order!

[Eric Smith (4379)]

It's a sad day for personal liberty here in the USA.

The court apparently ruled that the ID requirement is not unconstitutional because the Constitution does not guarantee the right to travel by any particular form of tranportation. This is entirely irrelevant. The Constitution is a limit on the powers of government, not a grant of rights to the people. None of the powers of government enumerated in the Constitution or Amendments give the government the power to restrict US citizens from traveling within the United States by any means they desire. In particular, the government cannot require a passport for domestic travel, yet that is what this requirement does.

Furthermore, the Constitution does not give the government the power to enact and enforce secret laws or regulations. The very concept is anathema to the Rule of Law. If the government did any legitimate power to compel domestic travellers to present identification, it could only exercise that power by publishing laws or regulations that are subject to public scrutiny and judicial oversight.

I very much hope that Mr. Gilmore will appeal this ruling.

Re:Your papers are not in order!

[Eric Smith (4379)]

Nonsense. If John Gilmore purchased a ticket from the airline in California, and boarded the plane in California, no interstate commerce is involved in that transaction, so the goverment can't use the interstate commerce clause to justify interfering.

If John purchased the ticket online or by phone, and the airline mailed it to him from another state, then interstate commerce would be involved, so the government could regulate the sale of the ticket. But that doesn't give them any basis for a regulation requiring presentation of ID to board the aircraft, as the act of boarding the aircraft is not commerce.

Re:Your papers are not in order!

[kraada (300650)]

Nonsense. If John Gilmore purchased a ticket from the airline in California, and boarded the plane in California, no interstate commerce is involved

Not according to the SCOTUS definition of interstate commerce. The SCOTUS definition of interstate commerce includes growing wheat for yourself in your own farm for your own consumption. As established in Wickard v. Filburn [wikipedia.org] (1942).

Further, the reason why the medical marijuana case (Gonzales v. Raich [wikipedia.org] (2005)) was decided in favor of the U.S. Government was due to the fact that selling marijuana in California affects the underground market for the drug, which crosses state broundaries.

Given these two SCOTUS decisions it seems pretty clear that purchasing a ticket in order to leave one state and enter another is interstate commerce. Further, boarding in one state and exiting in one state is probably interstate commerce too as the option to buy that seat was open to others outside the state and thus your action influenced their market value.

It's a crappy interpretation, imho, but it's currently what we've got.

let's simplify

[misanthrope101 (253915)]

No matter what the government does, a large swath of the population, not to mention the powers-that-be themselves, will always consider it legal and appropriate. The President could outright suspend habeus corpus, conduct summary executions, and carpet-bomb cities, and he would still have the utmost certitude that what he was doing is right, and millions of Americans would agree wholeheartedly. Probably half, perhaps more, of Americans don't really care about freedom in any substantive way, and to them civil rights are "liberal" issues only ACLU-types would favor over the security and safety of even one (American) life. And they all know that the ACLU is a bunch of wacko far-leftists hellbent on undermining all that is good about the United States.

So let's stop pretending that if only Americans knew exactly what the government was doing that they would demand change, much less accountability. The Right has won by demonizing anyone who is skeptical of government power as anti-American, liberal, terrorist-sympathizing, and so on. By the time that whitebread, middle-class Americans are pissed off by the "show me your papers or go to jail for an indefinite length of time, and no we don't have to charge you with anything" state that America is moving towards, that apparatus will be too entrenched by precedent and public apathy and it will be too late to undo it completely. There may be a symbolic backlash a few years from now, but the recovery of civil rights will be less than the loss, and the progression will be ever downward.

Freedom requires a skepticism of government power. Every law, every prerogative of the police, every restriction, has to be greeted with a raised eyebrow and "why do you need that power?" for freedom to survive in society. That spirit is hard to find in Americans, and you can't kindle it in someone who doesn't have it.

One of my first jobs was with an electronics company that made circuit boards for cameras that went in police cars. If the flashing lights were on, then the camera was on. My second week on the job I remember the boss saying that the police departments had requested a modification--they wanted a way to turn off the camera while the flashing lights were still on. The first thing that popped into my mind was "why would they want to turn off the camera?" My entire political philosophy is built up from that question, but if your instincts are more trusting and credulous when it comes to government, then the question would never occur to you. Freedom requires skepticism of government motives. People have to understand and believe that, like Lord Acton said, power does corrupt. Not might or could, but does.

A couple of things...

[deblau (68023)]

Disclaimer: I have not read the opinion, the following is my own analysis of the issues. IANAL.

From the Gilmore website [papersplease.org]:

The right to travel involves a number of constitutional issues:

The 1st Amendment

Physical travel and the First Amendment are inextricably intertwined. If you can't travel, then how can you exercise your right to Assemble? You can't Associate either, because you won't be able to get anywhere. Your right to Free Speech is also affected. You can say what you want, just not at that conference you wanted to attend but couldn't because you weren't allowed to get on a plane.

This is mostly right. Travel and assembly are related. Travel and free association are related. The last argument, however, is totally specious. No one told Gilmore he couldn't go to Maryland, they only said he couldn't do it (1) by airplane (2) without showing ID. This is not unreasonable given the current so-called state of war, and in any event it's certainly not unconstitutional. Denial of a particular mode of travel is not the same as denial of travel. This is substantially what TFA said.

The 4th Amendment

Refusing a government "request" for ID triggers a severe penalty, such as loss of free movement. And lest we forget, having to show your ID is a search without a warrant.

This one is trickier. The Fourth Amendment [cornell.edu] only applies to government actors. I can decide to not let you into my birthday party until you show me ID. That's fine, and it's not unconstitutional, because I'm not the government. The first answer to Gilmore's statement is that airlines are private companies, hence not government actors. However, there's an agency argument to be made, that the airlines are acting on behalf of the government, when they comply with federal regulations. Assuming the airlines are government actors, the Fourth Amendment applies only to unreasonable searches and seizures. Reasonability of the search itself turns on whether there is a socially reasonable, legitimate, or justifiable expectation of privacy. Read United States v. Knotts [findlaw.com]. Does society at large think it unreasonable, illegitimate, or unjustifiable to have to show ID to board airplanes? The very fact that Gilmore's case is news seems to indicate the answer is 'no'.

In this court case, the core issue of our right to travel has been obscured by other side issues, secret law being the most outrageous of them.

The core issue that the right to travel isn't at stake here has been obscured by rhetoric. Travel by airplane isn't a right, it's a convenience, and the constitution doesn't deal in conveniences.

Secret Law

There is no published statute or regulation requiring traveler identification. The airlines and the federal government insist that federal law requires passengers to show identification, yet can point to no published source of that requirement.

This is right on the money. Secret law is the purview of tyrants and dictators. If the federal government wants to regulate the airline industry by passing a law requiring ID checks, it is entirely within their power to do so.

IMHO: Judges are smart, and they can see through rhetoric. This isn't an issue of freedom to travel, it's an issue of secret regulations and star chambers. The Bush administration will be remembered for two things: the so-called 'war on terror', and the vast and secret power grabs by the executive branch in order to fight that war. Maybe if Gilmore had focused his primary attack on the secret law angle, he might have had better success. Instead, he treated it as a "side issue".

Re:Well, maybe so...

[Russ Nelson (33911)]

Why would you be any safer if everyone around you had an ID card? What are you going to do, hold it up in front of you as a shield against harm? Why are you safer if you know who you are travelling with?
-russ

Re:Well, maybe so...

[jcr (53032)]

Mohammed Atta had a passport and credit cards, and there's no indication that he was reluctant to show them as he got on a plane at Logan airport on 9/11. Same with the shoe bomber.

Maybe checking ID doesn't really help.

-jcr

Re:Well, maybe so...

[SnapShot (171582)]

Unfortunately, it just goes on and on...

If there is "even a small chance" you are talking to a terrorist then we should all have our phone calls monitored.

If there is "even a small chance" of terrorism then we should all be forced to carry identification papers.

If there is "even a small chance" you may have searched for porn then we all should have our Google searches stored and analyzed.

You may want to ignore the minor issues, but eventually they will become major issues and then it will be too late.

My thought: we should start working on an Amendment to Constitution that makes a "Right to Privacy" explicit instead of depending on the judicial branch's interpretation of the 4th Amendment. At least it would be a worthwile campaign unlike the never ending battle to create an amendment to ban flag burning at gay marriage ceremonies. This is not my idea, by the way, this was proposed by Dan Savage in a NYT editorial last year (I think).

Re:Well, maybe so...

[Curunir_wolf (588405)]

My thought: we should start working on an Amendment to Constitution that makes a "Right to Privacy" explicit instead of depending on the judicial branch's interpretation of the 4th Amendment. At least it would be a worthwile campaign unlike the never ending battle to create an amendment to ban flag burning at gay marriage ceremonies. This is not my idea, by the way, this was proposed by Dan Savage in a NYT editorial last year (I think).

No. That will just exacerbate the problem. The twisted logic people keep using -- assuming that if the Constitution doesn't explicitly grant you some right, then you don't have it -- is utterly wrong. It's backwards!! And it confirms the fear of the original framers that were opposed to adding the "bill of rights" in the first place: that it could be construed to mean that citizens' rights are limited to those that were spelled out.

So - where in the Constitution is the GOVERNMENT granted the right to know the identity of travellers? Where is this type of authority implied? Regulating interstate commerce is authorized, but that only applies to goods transported across state lines.

The point is, you have the right to travel anonymously because the government has NO RIGHT to stop you.

Re:Makes Total Sense

[Russ Nelson (33911)]

The trouble is that the private corporations are claiming that they would be willing to let him fly without picture ID, but the government is preventing them from doing so with a secret law.

If your only mode of travel is to walk from California to the District of Columbia in order to petition your government, then you are *effectively* denied your right to petition. If you have to persuade or pay someone to drive you, you don't have a right to travel to petition the government; you are relying on someone else's right to travel. If I only have a right because someone else has a right, then I don't have that right.
-russ

Maybe.

[abulafia (7826)]

I'll grant that you've had that experience. Maybe even most people have. I had the exact opposite the one time I forgot ID. (I'm a mid-thirties, white, business attire type who flys quite a bit these days.) It screwed up some important plans.

The point is that certainty is missing, that secret law governs what happens, and that there is no recourse. Unlike any other transport service, I can't count on being allowed to fly, even with a contract for that service in place. Calling the airlines private at this point is silly - they are all but nationalized - bailouts whenever needed, security all but outsourced, and plenty of congresscritters to buy them the legislation they want.

And that's before I bitch about the specific requirements and creeping TOA/BB/SS/Whatever you want to call it.

For them wot care, take a look at a different view [hasbrouck.org] of how airline regulation [hasbrouck.org], secret law, and the airline cartel's cozy relationship with government [fed-soc.org] is working out.

Truly, we are approaching a situation in which certainty of contract and basic privacy is reserved for those wealthy enough to use blinds, have a share of a plane, the money to create a trust for private finance, etc. And the cost is going up.

If you feel protected, you're deluding yourself.

Re:Makes Total Sense

[jcr (53032)]

Actually, the biggest issue in the case seems to have been ignored, which is that a law may not be a secret. Gilmore demanded to see the law or regulation which required him to show ID, and the government refused to show it to him.

-jcr

Re:Makes Total Sense

[Create an Account (841457)]

Disclaimer: I used to be an airport security monkey (Tampa Int'l Airport).

There is not a secret law at work here. There is a law in the USC requiring the airlines to develop and implement security procedures. This law requires them to keep these regulations secret. The security guard in question probably had no knowledge of the USC, but he has been through training that told him he is not required (or allowed) to show any of his regulations to customers.

This arrangement works out ok if you see the airlines and the gov't as separate entities. If you see them as two intertwined octopus-like organisms then it starts to look more like an intentional evasion of Constitutional guarantees.

I'm not sure where I stand on this issue, exactly. I do know that I used to tell stories about just how bad airport security was, from the perspective of someone who knew. Since Sept 11 I don't think those stories are funny anymore.

Re:It's the airline's property....

[smbarbour (893880)]

This is where the grey area lies. The airlines should have the right to refuse to allow you to board... as long as they refund your ticket with no penalty.
 
If a company accepts payment for a service (such as transportation from point A to point B), then either they must provide that service or refund the payment in full.

Re:Just one little comment

[Locke2005 (849178)]

You're missing Gilmore's point, which was not that the government had no right to ask for ID, but rather that a free people should not be subject to secret laws. He asked to see the statute that allowed them to check for IDs, and they refused to show it to him. If they can do this, than they can claim ANYTHING they want is authorized by the secret law. For instance, airport security could claim that attractive women are required to give screeners oral sex to prove they are not terrorists, or else they will not be allowed to board the plane. This is very different from a traffic citation, wherein the officer will state the specific statute violated on the ticket, which can then be looked up in any library.