Identity Crisis (dot Name)

Corporate Critic Fights to Keep Anonymity

Chemical Company on Quest to Identify Online Speaker

The Electronic Frontier Foundation (EFF) and the California First Amendment Coalition (CFAC) have asked a California appeals court to scrutinize a chemical company’s attempt to strip the anonymity from a participant in an online message board.

Identity demands are everywhere — particularly for “troublemakers” whose information or commentary upsets the powerful and the politically well-connected. It’s good to see EFF fighting (and winning) more than a dozen issues of anonymous speech, publication, and association. Now if only anonymous association was as well protected In Real Life as it is On The Internet!

In the New York Times of October 1, 2006, “Week in Review” page 10, Richard Clarke’s guest op-ed complains that we lack national unity to fight terrorists. He blames this on (1) the Iraq idiocy, (2) “the administration’s willingness to use 9/11 as an excuse to strengthen presidential power and erode fundamental American civil liberties”, and (3) scaring the voters by yelling about terrorism. Since he’s personally done two out of the three, he should know.

In Mr. Clarke’s own book “Against All Enemies”, he admits how he and Cathal “Irish” Flynn stayed up all night inventing new airport regulations after TWA 800 disintegrated due to a spark in a gas tank (page 122). These new airport regs were secret, and remain secret today. Mr. Clarke seems to see a difference between “erod[ing] fundamental American civil liberties” and “demanding ID from citizens before allowing them to travel”. He doesn’t seem to see any civil liberties problem with creating secret laws, either.

Now that the Supreme Court is considering answering my question about whether Mr. Clarke’s secret law is constitutional, perhaps Mr. Clarke would like to comment on whether the ability to read the law, and the right of citizens to assemble and travel even if they have no ID cards, are “fundamental American civil liberties” that he eroded.

I was writing a response to a FAQ at flexyourrights.org that asks
“When do I have to show ID?” The airport section of what I wrote starts
like this:

TSA airport regulations state that everyone is free to fly without ID if they’ll undergo a more extensive physical search, but because this regulation is secret, some airport officials don’t believe it exists.

That sentence struck me — because it sounds like a typical conspiracy theory line, but in our case it’s literally true.

The Justice Department has asked to extend its deadline in responding to John Gilmore’s Supreme Court challenge to the secret law that purports to require ID of airline passengers. Its response is now due on October 11, 2006.

Currently, airlines do this job. But a New York Times story says that

• Homeland Security Secretary Michael Chertoff said Sunday (13 August 2006) that he intends to replace contractors who inspect passenger identification at airport checkpoints with staff from the Transportation Security Administration, a move that would be one of the biggest expansions of the agency’s tasks since it was set up. …

  Details of the plan to replace the contractors were still being worked out. But Chertoff said the agency’s screeners would be trained in psychological profiling under the plan, which he intended to announce in the coming weeks or months.

“Psychological profiling” means demanding that passengers answer questions about who they are, what they’re doing, where they’re going, etc. Passengers who categorically refuse to answer these questions, as the Fourth and Fifth Amendments permit them to, may well be “profiled” out of being able to travel.

We filed our cert petition with the US Supreme Court today. We’re asking that they invalidate TSA’s secret rules (until or unless TSA publishes them as a regulation). We suggest that:

A. The Government’s Insistence on Deeming the Directive a Secret Notwithstanding That It Acknowledges the Directive’s Existence and Its Contents Violates Due Process

and that

B. Alternatively, This Court Should Reject the Court of Appeals Determination That the Directive Is SSI and Hence Immune from Disclosure.

Attached are our first four working drafts of the Petition for Certiorari. As you’ll see, the Petition is much closer to complete now than in the early drafts. Drafts 3 and 4 are substantially the same, except that they are organized differently, and we are evaluating to decide which we prefer. Review the draft and post your comments.

Gilmore Cert Petition — Draft 1
Gilmore Cert Petition — Draft 2
Gilmore Cert Petition — Draft 3
Gilmore Cert Petition — Draft 4

Title 49, section 114(s) provides:

(s)  Nondisclosure of security activities.

(1)  In general.  Notwithstanding section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would—

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to the security of transportation.

49 U.S.C. § 114(s).

Section 114(s) was amended to Title 49 of the United States Code in 2002 following legislative approval of House of Representatives Bill No. 5005 (“H.R. 5005”) which enacted the Homeland Security Act of 2002, Public Law 107-296.  The bill was enacted in response to 9/11 and brought about a major reorganization of several federal agencies under the Department of Homeland Security.  Read more…