One of the most fundamental, and sometimes annoying, principles of American law is described by the old adage, “Ignorance of the law is no excuse.” But the courts have held that in order for this to apply, and you to be responsible for a law, the government must provide “notice,” for instance, publishing the law in the Federal Register.
So it is that John Gilmore is challenging apparently secret Transportation Security Agency regulations which he was told he could not see after being denied boarding two aircraft at two different California airports. Gilmore is taking his case all the way to the U.S. Supreme Court after losing on appeal in the Ninth Circuit.
The government has said that the public can’t know what the regulations are because they constitute Sensitive Security Information, or SSI, which is overly broad and covers almost anything the TSA does — even many of the things you can stand there and obviously watch them doing.
“The TSA is allowed to withhold some information from the public, but only in cases where transportation security is at risk,” said EFF Staff Attorney Marcia Hofmann. “Simply showing Americans the rules they must follow can’t possibly compromise security. The real danger here is meaningless secrecy, which can hide security flaws, frustrate the justice system, create confusion, and undermine government accountability.”
The Constitution and laws like the Freedom of Information Act (FOIA) prohibit the government from imposing secret laws on the public. But if the lower court decision permitting the secrecy is allowed to stand, it opens the door to other government agencies creating undisclosed rules and regulations without oversight.
“‘Security’ shouldn’t be a magic password allowing the government to escape accountability,” said Hofmann. “The Supreme Court should hear this case and review why the TSA insists on keeping this basic information secret.” — Electronic Frontier Foundation
Since I’m in Boston right now, I’m going to forgo my usual summary of the background of the case and refer you to Ryan Singel’s excellent article at 27B Stroke 6.
The longer this goes on, the stranger it gets. Since Gilmore was denied boarding those fateful flights in 2002, many people have decided to attempt to fly without showing identification, and virtually all of them have succeeded in doing so.
Gilmore’s case, though, should clarify whether we are a secret police state where we have to follow laws that we aren’t allowed to read for ourselves, or whether some small vestiges of liberty still remain.
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Karl Marx would love the popular moves among politicians in various state governments and the federal government to ban so-called "junk" food in schools, and to "put healthy food in" convenience stores and on the tables of those they define as poor. It's a very elitist and arrogant mindset that promotes this ideology, and it needs to be addressed.
Ultimately, the war supporters in Congress prevailed in the vote on the resolution. Still, the vote was significant because it places every member of Congress on the record as supporting or not supporting the unconstitutional, costly, violent occupation of a country that never attacked us. This vote should serve as an important reminder to the American people of where their representatives really stand when it comes to policing the world, empire building, and war.
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Q
Nov 15, 2006
TSA once again trying to sweep their mistakes under the carpet instead of dealing with them. This is becoming a pattern, and here I thought hey, they have a new boss maybe things will be different…
BelchSpeak
Nov 15, 2006
One vestige of liberty? You are always free not to fly. Producing a valid ID upon request is not an undue burden on a citizen. The Ninth circuit, the most liberal court in the country decided that this case had no merit. And if you want to find out what the law says, you have to get a job at the TSA, get the necessary clearance level and find out.
For those that are not trustworthy for a clearance level, they will continue to whine and cry about the unfairness of it all. This appeal to the Supreme Court will likely not be taken up. They will allow the previous ruling to stand.
Michael Hampton
Nov 15, 2006
And why exactly are you defending this horrifying departure from everything America stands for and arrival in the new Police State of America?
BelchSpeak
Nov 15, 2006
Horrifying departure?? Asking for an ID is neither a horrifying departure from what America Stands For, nor is it a signal of a police state.
Again, the most liberal court in the United States said the case lacked merit and rejected each and every one of Gilmore’s arguments.
Your shrillness reminds me of a woman dancing on a chair with her skirt up, screaming with a mouse running around the chair leg.
ThomasQ
Nov 15, 2006
Regardless of which particulars are involved, I fully agree that it is wholly unjust and unfair to hold someone accountable for information they are not allowed to have access to. Showing or not showing ID is one thing; having a state (in this instance the United States) that can impose and enforce secret laws is quite another. And that IS a signal of a police state, existing or emerging.
Brock
Nov 15, 2006
“Your shrillness reminds me of a woman dancing on a chair with her skirt up, screaming with a mouse running around the chair leg.”
Make room for me, Mike! Call me crazy, but I’m not willing to trust my personal security to a TSA with proven security holes. I’m paying for it, so I’d like some actual security. The best way I know of doing that is to lay all the cards on the table and let the MENSA-babies of the world hack at them for holes and implement their solutions.
Until I get to see the program, the only thing I know for sure is that it’s broken!
BelchSpeak
Nov 15, 2006
Laws have been secret for years and years. This is nothing new. There are written laws from the DoE on how to properly handle and enrich uranium. Those laws are secret, and for good reason. There are laws governing construction of military vessels. There are even laws that prohibit giving information to the public via Freedom of Information Act.
Security enforcement does not mean that there is an active police state. And as far as implementing solutions to vulnerabilities in systems, you do NOT hack it first, then fix it later. You keep the vulnerabilities secret and follow the practice of fixing the holes quietly and quickly before anyone else stumbles on the vulnerability and tries to exploit it.
Michael Hampton
Nov 15, 2006
DoE regulations on uranium handling and the like are certainly secret — but not to those to whom they apply! That’s a big difference.
TSA wants to apply secret regulations to those who won’t be allowed to know what they are. This IS a departure, whether you want to admit the obvious truth or not.
You really should also disclose your conflict of interest in these issues which is almost certainly clouding your judgment.
BelchSpeak
Nov 15, 2006
Conflict of interest? I deeply dislike the TSA for their bloat, their surliness, and the way they make me feel dirty for wanting to fly on an airplane. They waste money in ways you dont even know.
The regulations are secret specifically because revealing them would violate operational security of the procedures themselves. Yeah, its stupid. But Mike, its not that big of a deal, nor does it signal the arrival of a police state as you have previously asserted. I know you deeply want to see a bogie man in this, but there just isnt one here. Just more stupidity and bloat, but nothing to be afraid of.
Michael Hampton
Nov 15, 2006
Wrong as it is, you’re entitled to your opinion, even if you won’t disclose your conflicts of interest…
It is absolutely not American to subject anyone to secret regulations. That’s one of the hallmarks of a fascist state.
Why are you supporting this?
And there is no REAL operational security issue here. Overclassification is running rampant all over the government, something you must be well aware of.
Brock
Nov 15, 2006
“Overclassification is running rampant all over the government, something you must be well aware of.”
Funny. When I was in a position to determine classification, the best advice given to me was, “don’t create classified unless absolutely necessary.” That gem saved me a ton of time, effort, and brain cells. Oh, yeah – it also kept my truly sensitive info secure!
BelchSpeak
Nov 15, 2006
I am a cyber security expert who helped DHS standup US-CERT, and a resident of Northern VA. Readers of my blog are aware of this, but I hardly consider this a “conflict of interest.” Some may say that this gives me authority behind my assertions, but I am not saying any such thing.
If you have searched my blog for my comments on DHS, you will find that I have also been critical of many aspects of their operations. Some things they do pretty well, however, especially with information sharing with law enforcement.
I have been critical of EFF too.
Mike, just because I criticize your stance on this one issue doesnt mean that I support secret laws. Im just saying that several courts have already told the EFF and John Gilmore that they simply have no case here. I agree. This is not the big deal you seem to think it is.
Michael Hampton
Nov 15, 2006
You still haven’t explained how making someone subject to a regulation they have no ability to inspect or comment on isn’t a vast departure from the normal rule of law in this country, and how it somehow doesn’t constitute a police-state tactic.
I suspect you can’t explain it at all, which is why you’ve been resorting to ad hominem attacks against me instead.
Brock
Nov 15, 2006
Damn, Belch. Your “I’m an expert in cyber security” sent me all over the Intraweb looking for where I’d seen someone say that before. Turns out it was you, here, last week, about the Diebold machines.
I want an hour back.
BelchSpeak
Nov 15, 2006
Yes, Brock, you remember that thread. I have emailed you one hour. You should receive it soon.
Mike, people are only subject to this law if they want to fly. The law only deals with either showing a picture ID or being subjected to a search prior to boarding. There are reasons behind the law, but they are classified to prevent miscreants from exploiting any weaknesses in those procedures.
John Gilmore is not interested in defending freedom. He is a millionaire kook who believes that “information just wants to be free.” He is hell-bent on exposing flaws in the nation’s security at airports and in the terrorist surveilance program. But lawmakers and judges disagree with him, as do most Americans.
I did not make ad-hominem attacks against you Mike. I just pointed out that in this instance, there is no boogie man behind the laws. Is it a “vast departure?” Who could tell? There may be several other laws that those without clearance cannot inspect as well. After all, arent they secret?
mdf
Nov 16, 2006
How quaint: “cyber security”. So … early 1990’s. Let’s just leave it at that people who claim they are “cyber security experts” have a massive bayesian prior to overcome: they are virtually certain not to be such.
The apologetics re: “the secret rules only apply to people who choose to fly” are further good evidence for Mr. Hampton to conclude you are not completely on the up-and-up. Simple common sense: why not try using it? For an entertaining dramatization, feel free to read Kafka’s “The Trial” before further comment on this matter.
Or has your government placed that one on the index librorum prohibitorum?
That these rules are secret because people might be able to work their way around them if they knew the Secret Procedures is already well known to be without merit. I mean, heck, the fact that “people with ID get checked less” is itself a massively huge hole in the security apparatus, don’tchathink? In that aspect, of what value is it that the Super Extra Checks made for people without ID are secret? Any of these “miscreants” you speak of will simply get some ID and be waved through with the rest of them. But even if they did fly without ID, all it would take is a few trial runs to figure out The Secret all on their own and act accordingly. Oh no! Because they have no ID, it won’t be possible to discover these “probes” or correlate them to other individuals and thus unravel the plot! Could it be, Mr. Cyber Security Expert and DHS consultant, that your (and your compatriots) sycophantic obeisance to Holy Secrecy has itself created a huge problem in the first place? And this, my good man, is what begs the ultimate question here: is the secrecy you insist we love really for operational reasons as you claim, or is it just par for the course cover-your-ass doctrine we have come to expect from the bureaucrats?
JPB
Nov 21, 2006
As a pilot, this puts me in mind of a flight restriction put in place not too long after 9/11. The restriction made it illegal to fly within 10 miles of a nuclear power plant. Unfortunately, there are about 100 of these in the US, and their locations are not shown on navigation charts, and the government’s websites would not tell you where they were, because “that is sensitive information”.
How very much like government.
Jan 09, 2007
Supreme Court refuses Gilmore due process case - Homeland Stupidity
Nemo
Sep 04, 2007
Here’s how you secure a passenger flight.
In every headrest, where the stupid phone is, put a lock box that is controlled by the pilot. In every lock box place a weapon, such as, a knife, gun or mix and match. When a muslim extremist tries to take over the plane, the pilot just presses the red button that opens all lock boxes, thus, arming the entire flight.