Suspected terrorist: multimillionaire John Gilmore is suing the government to remain anonymous. Is this the last stand for privacy?

Reason, August, 2003 by Brian Doherty

IT'S JANUARY, AND I'm entering the federal court-house in San Francisco to attend the opening hearing in the case of Gilmore v. Asheroft, et al. John Gilmore, a computer industry multimillionaire and libertarian activist, is suing the federal government and two airline companies because the airlines demanded to see his ID before they would let him on a plane.

An affable courthouse guard asks me to show him an ID. I comply automatically.

"Did you see the ZZ Top-looking fellow who came through earlier?" the guard at the door says to another one manning the X-ray machine, "When I asked him to show me his ID, he asked me to show him one."

"Did you?" I call back from the other side of the metal detector.

"Sure, why not?"

Why not, indeed? The world does not indulge those who refuse to flash identification when asked. Earlier that week, I was purchasing my first cell phone. Bursting with bile over such intrusive requests because I'd been researching the Gilmore case, I frostily walked out of one Cingular store after the clerk demanded my Social Security number and couldn't even tell me why. She just blandly, coldly repeated: "It's a necessary part of the form."

After 40 more minutes of driving around Los Angeles and another such demand, I finally found an easygoing young man in a cell phone store who at least had an answer. "We need it for the credit check."

OK. They'd all probably have to do a credit check, right? Wouldn't want my own record mixed with some deadbeat Doherty. I just wanted a cell phone. I went through the familiar ritual: recited the number. Didn't even transpose a couple of digits like I sometimes do. After all, I'm asking them to give me a free phone and start trusting me to pay monthly bills for services already rendered. It doesn't really burden me, and it's necessary.

Just like showing an ID to get on an airplane. At least that's what the federal government is trying to convince Federal District Judge Susan Illston today.

Privacy Dogfight

Gilmore enters the courtroom, exuding what they used to call positive vibes. He's wearing a bright color-splashed tie and Dr. Seuss socks in open-toed sandals. His hair and beard are long and wispy. He hugs some friends and greets the "zz Top-looking fellow" who puckishly challenged the guards. That would be Edward Hasbrouck, a professional travel writer also trying to sever the tightening data webs in which the government is planning to enmesh travelers.

John Gilmore is here today because on July 4, 2002, representatives of Southwest Airlines in Oakland and United Airlines in San Francisco refused to let him board a plane to Washington, D.C., when he wouldn't show them an ID. He wished to fly, he says, in order to personally petition his elected representatives for a redress of grievances. Gilmore thinks the airlines' ID policy is based on a secret demand from the federal government. He committed his act of civil disobedience against the security state on July 4 explicitly for the symbolism.

Gilmore can afford to be here because he made a great deal of money in the 1990s as employee No.5 of Sun Microsystems and as a one-third owner of Cygnus Solutions, a company sold for what Gilmore vaguely remembers was "around $675 million." (The vagueness comes across as oddly charming, not airily plutocratic.) Gilmore is used to quixotic fights against the legal system. A dedicated libertarian, he spends some of his free time and money agitating for medical marijuana rights, though he is a hardcore abolitionist about all drug laws.

While Gilmore remembers 9/11, when 19 villains used airplanes to murder 3,000 innocent people, he maintains that showing ID before getting on a plane is just a way to make the rubes feel safer. Anyone can flash a card with his or her picture (or someone who looks like him) and a name and address.

Real security, he believes, comes from making sure travelers don't have weapons or explosives on them and having people on planes ready to fight would-be hijackers. Thus, the ID demand--apparently the result of the still-secret government mandate--serves no necessary state purpose and violates his right to travel, his rights to peaceably assemble and to petition his government for redress of grievances, and his Fourth Amendment right to be free of unreasonable searches.

The government wants the case thrown out of court. It wants to convince Judge Illston that the ID regulation in question is "sensitive security information" and must remain secret. It also argues that precedent has established that burdens on just one mode of transportation do not limit the constitutional right to interstate travel, and that ID requests aren't really "searches" under Fourth Amendment law.

Judge Illston is exasperated when she can't figure out exactly what it is Gilmore is complaining about. His case appears to mix his specific claim of injury from the ID demand with complaints and fears about "no-fly" lists and passenger screening systems--both the existing Computer Assisted Passenger Prescreening System (CAPPs) and the proposed, more thorough, CAPPS II.