Like many Americans, when John Gilmore wanted to travel somewhere, he decided to fly. Unlike most people, however, he refused to show identification or submit to an intensive search before boarding the plane. As a result, he was not allowed on the plane.
For most people, the story would have ended there. But John Gilmore is not your ordinary American. Gilmore is a co-founder of the Electronic Frontier Foundation and a strong advocate of privacy. After being turned away from his flight, Gilmore filed a lawsuit against the government and several airlines challenging the identification requirement to fly.
It is not just the challenge to the requirement of his identification that makes Gilmore's case an important one for civil liberties. After having his case dismissed in district court, Gilmore appealed to the Ninth Circuit. The government is asking the court to allow for secret briefs to be filed, with redacted copies made available to Gilmore and to the public. Most disturbingly of all, the government refuses to confirm or deny the existence of any law or directive that would require an airline passenger to present identification.
It is a common saying in the law arena that "ignorance of the law is no excuse." That is, you may commit an act made illegal by a law you did not know of, or did not bother find out about. In any case, since the law was on the books you may still be found guilty for your crime.
This saying holds because nearly all of our country's laws are a matter of public record. You can find out, without much trouble, just about any bit of law on the books in America. You may have been ignorant of a law, but at any time you could have checked to see if such a law existed.
Now, however, we have the government supporting requirements that may or may not be law. It is impossible to expect anyone to be aware of laws that the government will not even confirm exist.
Secret laws are a massive threat to civil liberties. Should the Ninth Circuit rule in favor the government, that opens the door for arrests and detentions of innocent people who were not violating a law, and more importantly, could not have possibly known they were violating a law.
Enacting laws and directives in secret gives the government major loopholes to our system of justice. Part of the requirements of an arrest is that the accused is informed of their crime. He/she are arraigned and tried for a specific crime. Some lawyers will find problems with the laws criminalizing such activities, and it is possible for courts to overturn laws. But what if you cannot find out the phrasing of a law, or even if the crime you stand accused of is actually a crime?
Such power could easily be used to arrest otherwise lawful citizens. For example, protesters who are in full compliance with published laws could be arrested simply if the government saw fit. By simply labeling them a risk to national security, the government would seek to be allowed to proceed in secret, without even notifying the person of what they had done wrong.
These laws also remove public participation from the picture. Many bills have been proposed to Congress, only to be withdrawn or voted down after strong public outrage. How can citizens express their opinions about the laws of this country if they are never being told of the laws?
As I wrote in this space last week, there is a need for a trade-off between security and liberty. I want to again reiterate that what is needed is a balance, not a lopsided move toward "security" at all costs, no matter how ineffective or invasive, and the privacy and liberty of our citizens.