Court Rejects Government's Bid for Secrecy in Airport ID Appeal

The Ninth Circuit Court of Appeals has rejected the government's attempt to bar the press and the public from a trial where plaintiff John Gilmore is challenging the constitutionality of requiring airline passengers to show ID.

Last week, the government tried to sidetrack Gilmore's appeal to the Ninth Circuit by asking to have the case heard in secret and with motions filed "under seal," arguing that disclosing the security directive could be "detrimental to the security of transportation."

"This case is about the unconstitutionality of secret law as well as about forcing people to show ID," said EFF Senior Staff Attorney Lee Tien. "We're glad the court didn't buy into this administration's obsession with secrecy."

When Gilmore's case was dismissed by US District Judge Susan Illston in 2002, the government refused to show the challenged regulations to the district court -- or admit that the regulations even existed.

Although this is a victory, it needs to be taken in context. No one is even remotely able to become familiar with all the aspect of the law that they deal with in their daily life, much less the law covering rare situations. It has been estimated that there are over 20,000 gun laws on the books already. Who could possibly expect to remember all of those laws? And yet, we are told that ignorance of the law is no excuse.

The fact is, humans operate on a set of very basic assumptions about what society considers acceptable. Simple rules like "Don't hurt other people" and "Don't take other people's property". Even those rules require lawyers to analyze the details of a case when the stakes become high enough. The more complex you make the legal code, the less likely people are to follow it successfully, simply because they do not know and can not know what the law is -- only the simple rules they have managed to internalize.

Insofar as the law agrees with those rules, it will be generally obeyed. Not because of the law -- because of the social rules. Thus, we have the illusion of being "law-abiding" citizens when in fact we are merely following our existing social mores.

That's why victimless crimes, like the drug laws, get no traction among the people. They conflict with the social rules that say "It's OK if you aren't hurting anyone or stealing their property". There are broad efforts to create a new social rule ("Don't do drugs") but those efforts have, so far, failed miserably. Pushing rules from the top down doesn't work. They have to start with the people.