A Q&A exchange between me and Eugene Volokh: [Eugene's responses in square brackets.]
The topic was Gilmore v. Ashcroft -- FAA ID Challenge in which John Gilmore is suing the Feds to be allowed to fly domestically without ID. So, does John have a chance? [No.] So it is your view that the Feds can ban anyone (except those wealthy enough to rent, buy, or build their own aircraft) from flying, for life, using secret orders, and without any access to judicial process. Seems a bit extreme to me. Could they do the same thing for riding in a car or walking? What about boats? [My view is only that they can insist that people show id.] So if there is a "Don't Fly" list, you would support people being able to sue to get off it? [Of course.] How can they force you to present something that they can't force you to have in the first place? [Same reason as for driver's licenses to drive. If you don't want an identification, that's fine -- but then you won't be allowed to do certain things where identification is necessary for security reasons.] I promised that I wouldn't send him any more mail for at least a week but now the time is up. One doesn't need a driver's license to ride in a car. The government is now claiming that you need ID to ride in a commercial aircraft. Since the development of passports for international travel at the beginning of the 20th century, passports (or other travel documents) have been necessary to enter other nations. Commercial carriers began to check them on boarding not for security reasons but because if passengers were refused entry at their destination the carrier was responsible for their maintenance and return. The problem with such ID requirements is not merely that ID is required. The problem is that the activity can be barred for reasons other than lack of ID. You will also be banned for your characteristics. After all, what's the point of requiring ID to fight terrorism if you can't ban terrorists from flights. Or people who fit a terrorist profile. Or people who owe child support (drivers licenses, fishing licenses, and passports are denied to those owing child support). An ID requirement, when you combine it with online verification and authorization, creates a federal license requirement to engage in the particular activity. In the above case, a federal license to fly on a commercial aircraft. In other proposals, a federal license to take a job, open a bank account or rent an apartment. A federal license that can be denied for any reason since it is issued via a computer analysis system driven by a secret algorithm. It's a license because the federal government is required to affirmatively grant you permission before you can do something. The right to fly is controlled by the Computer Assisted Passenger Profile System (CAPPS) -- soon to be replaced by the presumably wider-ranging CAPPS2. At the heart of CAPPS is a secret algorithm that determines whether you are or may be a terrorist. You can't know what facts or behaviors cause CAPPS to ban you from a flight since the algorithm is not for public consumption. In fact, since the Feds have not set up an administrative procedure for you to challenge a denial of flight boarding (or any of the future activities that will be subject to CAPPS2 and similar systems) only those with the $25K to 100K needed to bring a federal civil suit will be able to challenge their denials. The Feds require private businesses that deny you credit to follow an appeals process but don't impose such a requirement on themselves in the much more significant denials that CAPPS2 will make. And even for the rich, these court challenges will be hard to win since the reasons for the denials will be a state secret. So those who support such ID requirements and such federal licenses should be required to answer a basic question -- what activities should be subject to state and federal permission and which activities should not? DCF -- Posted by Duncan Frissell to The Technoptimist at 7/30/2002 10:40:04 PM
