WWW- Bespectacled, bearded and Birkenstocked (with Dr. Seuss socks), John Gilmore cut an appropriately iconoclastic profile Thursday as the centerpiece of a notebook-wielding gaggle in front of the 9th U.S. Circuit Court of Appeals.
Gilmore, a tech-boom multimillionaire who can’t fly on airplanes due to his refusal to show identification at airports, is a star — and major funder — of the electronic privacy movement.
He’s been at the center of an increasingly strange piece of litigation for the past three years since he sued the government, claiming that the requirement to show ID before boarding a plane is unconstitutional.
Complicating matters — and nourishing conspiracy theories — is the government’s ongoing refusal to disclose what, if any, such requirement is on the books.
Gilmore’s case was dismissed last year by Northern District of California Judge Susan Illston, on the grounds that Gilmore lacked standing (his right to transportation could be exercised in ways other than flying, Illston wrote) and that complaints about airport restrictions should go directly to the 9th Circuit.
So on Thursday, Gilmore’s lawyer, James P. Harrison, argued to have the suit reinstated in front of three 9th Circuit judges keenly aware that the litigant was suing to make a point.
“What better reason is there?” Harrison said after his spirited oral argument. “Just because he made a fortune doesn’t mean he shouldn’t stand up for other persons’ and his rights. Just because he can buy an airplane doesn’t mean he has to.”
The 9th Circuit panel of Judge Richard Paez and Senior Judges Thomas Nelson and Stephen Trott — “a terrible panel,” Harrison said, since Nelson and Trott are “law and order” judges — was certainly skeptical of Gilmore’s claim that asking for ID was an illegal search. Trott was especially doubtful that asking for identification comprised a search at all.
“What case says that simply asking someone for ID in a public setting is a search?” Trott asked Harrison, who protested that the ID check is part of an “administrative search” undertaken at airports.
“I assume what you’re telling me is there is no case,” Trott replied. Earlier in the arguments, he told Harrison that asking for ID “is an inquiry, it isn’t a search.”
But all three judges also seemed troubled by Justice Department appellate attorney Joshua Waldman’s argument that the government does not have to publicly disclose what kind of ID law it does or doesn’t have on the books, since the requirement is a confidential “law enforcement technique” and involves “sensitive security information.”
Prior to oral arguments, the court denied a motion by the Justice Department to submit applicable documents under seal, so the judges — but not Gilmore or his counsel — could see the ID requirement, sparking what Nelson referred to as “a brouhaha.”
“We offered to show it to a panel of three impartial judges,” Waldman told the panel. “I don’t see what’s wrong with that.”
In the end, Harrison asked the judges to remand the case to the trial court, where a record could be established for the 9th Circuit to review.
Waldman, on the other hand, asked for a complete dismissal — or for the 9th Circuit to address it directly.
“The government is clamoring to get in front of the 9th Circuit? Be careful what you wish for,” Trott said.
If the 9th Circuit does take it directly, Harrison said he’d like to submit additional briefs challenging all transportation-related ID checks.
For his part, Gilmore — surrounded by reporters, lawyers and the PR specialist he pays to build publicity for the case, and wearing a button that says “suspected terrorist” — said after the arguments that he has problems with all ID checks, including, apparently, the one at the door of most federal buildings, which meant it wasn’t cheap to get into the 9th Circuit Thursday.
“My lawyer signed me in,” he said.