Amicus Curiae Brief — Gilmore v. Gonzales (No. 06-211)

FILED

3) NOV 13 2006

FFI

No. 06-211 ps ICE OF THE GLEAK

In THE

Supreme Court of the United States

JOHN GILMORE,

Petitioner,

V.

ALBERTO GONZALES, ATTORNEY GENERAL, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

ELECTRONIC PRIVACY INFORMATION CENTER

IN SUPPORT OF THE PETITION FOR A WRIT OF

CERTIORARI

MARC ROTENBERG

Counsel of Record

SHERWIN SIY

ELECTRONIC PRIVACY

INFORMATION CENTER (EPIC)

1718 Connecticut Ave., NW

Suite 200

Washington, DC 20009

(202) 483-1140

i

i

i

TABLE OF CONTENTS

TABLE OF CODE BENE Bi cicssiessantsreccisitenicnitvtigeioemmdiann i

FABLE OF AU TI y te teteshesssescrvncscordieavclecttomendeea ill

INTEREST OF AMICUS CURIAE............cccccressssssessoessees A

AREAIIEIGS sccvoscityscsieasshckevsatinviniatssebssupicieusuniiaiinante th Pe

I. The Identification Directive Creates A Secret Law

Applicable to the General Public, Which Violates Due

PUROIIG caiicedsociscsicnibtchinssitilaukiinausiecancabamaniiaa 2

Il. Laws Withheld from the Public Require Even Stricter

Scrutiny than Vague LAWS ..0.cccccsssosssorsessiesovscessvosie 6

A. The Directive's Secrecy Denies Individuals a

Reasonable Opportunity to Comply with the Law

B. The Directive's Secrecy Prevents Meaningful

Review and Allows for Arbitrary Enforcement. 9

Il]. The Security Directive Containing an Identification

Requirement is Void for Vagueness.............s:0ss0+8 11

A. Case Law Does Not Limit Application of the

Void-for-Vagueness Doctrine to Penal Statutes 12

B. John Gilmore Did Not Have Actual Notice of the

TEA Secwtity OGG ose sis cispiticccisescsticortons 14

C. Even if the TSA Security Directive Articulates a

Clear Standard, That Standard is Unknown to the

Parties Charged with Its Enforcement............... 15

ii

IV. Withholding the Text of the Directive From Those it

Regulates is Contrary to the Statutory Intent of the

Aviation and Transportation Security Act...........0+ 16

eI cctiscesiainebicecisesosovevsnchsenveenhcaveveedieonnseontenion 18

ili

TABLE OF AUTHORITIES

Cases:

Bankers Life & Casualty v. Crenshaw, 486 U.S. 71, 87

CPI ic cicaiiaesasiesoiiesiceecncsaividicdbclinbbniccamtncasdeiaciabablawiisbetinils 14

Chowdhury v. Northwest Airlines Corp., 226 F.R.D. 608, 610

OE, 8 EDR Sale NODS ait vncticchecnetncicassbsdiegntsesinnneibiaeecbeicinbaes 3

Giaccio v. Pennsylvania, 382 U.S. 399, 462 (1966)........... 13

Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) passim

Gordon v. FBI, 390 F. Supp. 2d 897, 900 (N.D. Cal. 2004) 3

Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004) ......... stjoniusi 9

Hardy v. Bureau of Alcohol, Tobacco, and Firearms, 631

Fk GSS, GO 8 EI a FT sicstecictiiremsteccestecsansiiantsteiniie 5

Kolender v. Lawson, 461 U.S. 352, 357 (1983) .... 10, 12. 13

New York Times v. Sullivan, 403 U.S. 713, 724 (1971) ..... 2

Public Citizen v. FAA, 988 F. 2d 186, 188-89, 193 (D.C. Cir.

ON a ae 3-4

Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992)... 4

Winters v. New York, 333 U.S. 507 (1948) .00...... ce ceeeeeeeeee 13

Statutes and Regulations:

Aviat op and Transportation Security Act (2001) ............. 16

UGE OT on i 3.16, 17

cle a ICA tibislscnidicitvidacseseciciudtsvasdiebvisnbeintnhietecedndvate 16

49 C.F.R. §1520.5(6)5) (vulnerability assessments).......... 17

49 C.F.R. §1520.5(b)(6)(i)) (details of inspections revealing

I siahicciicictidcuncadarsnditnadchces dasannntinphsenopninsabens 17

49 C.F.R. §1520.5(b)(7) (threat information) .................... 17

49 C.F.R. §1520.5(b\(9) (information regarding screening

IED sshccetiicsitriinistedoniniainianeriaviebatasvnibcniicisasiin 17

BP CS SFR OOe titer hiasvecetsecinsdsinmeasiceccsinasclialieas 16

Be PR. FO SPE FC iiinevhreciceceningsscrsicaicinibnictesosnene 3

Other Authority:

BOE TAR TEE TO SF oii cccesernlidacnntveccnstieidtinieciiivasiinctces l

Bureau of Labor Statistics, U.S. Department of Labor,

Occupational Employment Statistics, Reservation and

Transportation Ticket Agents and Travel Clerks, seed 24,

TOY scctistsnssstsopiaeiiniitaal alg otestisidisatasiatwinnilahianssesaciahibdeaeines 12

FRANZ KAPKA, THE TRIAL (1925). .......0scccccsserrecsessensseeeeees 15

Harold C. Relyea, The Coming of Secret Law, 5 GOvV’T INFO.

Oe FFF A IEE. shcenhiihapsckiliadivciclesiaiaansebibtnsciascientimapiainnibsvipiias 2

INTEREST OF AMICUS CURIAE'

The Electronic Privacy Information Center (“EPIC”) is

a public interest research center in Washington, D.C. that was

established in 1994 to focus public attention on emerging civil

liberties issues and to protect privacy, the First Amendment,

and other constitutional values. EPIC has participated as

amicus curiae in several privacy cases before this Court,

including Hiibel v. Sixth Judicial Circuit of Nevada, 542 U.S.

177 (2004); Doe v. Chao, 540 U.S. 614 (2003); Smith v. Doe,

538 U.S. 84 (2003); Department of Justice v. City of Chicago;

537 U.S. 1229 (2003); Watchtower Bible and Tract Society of

N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002); and Reno

v. Condon, 528 U.S. 141 (2000). EPIC has also participated in

this case as amicus before the Ninth Circuit.

Unpublished, secret laws undermine the very essence of

self-government. Central to the American form of government

has been a longstanding commitment to public trials and to

openness in government decisionmaking.” “Publication of the

law militates against the plea of ignorance, provides a practical

' This brief amicus curiae in support of the petition is submitted

pursuant to Rule 37 of the Rules of this Court. Counsel for

Petitioner and Respondent have consented to the filing of this

brief. No counsel for a party authored this brief in whole or part,

and no person or entity other than amicus curiae made a monetary

contribution to the preparation or submission of this brief. Law

school students participating in the EPIC Internet Public Interest

Opportunities Program (IPIOP) Courtney Anne Barclay and Jay

Tamboli assisted in the preparation of this brief.

? See, e.g., THE FEDERALIST No. 49 (James Madison).

2

refutation of such a defense, and otherwise constitutes a

foundation stone of the self-government edifice.”

In this case, the government refuses to disclose the text

of a regulation compelling air travelers to present identification.

A generally applicable law or regulation that is not disclosed to

the public it regulates violates due process, creating the

potential for uncertainty and abuse of discretion. Such a

regulation is also void for vagueness. Furthermore, the

Transportation Security Administration's classification of the

regulation as "sensitive security information" is counter to, and

fails to serve the purposes of, the law that authorizes such

classification.

ARGUMENT

I. The Identification Directive Creates A Secret

Law Applicable to the General Public, Which

Violates Due Process :

The secret identification directive acts as a legal

obligation that directly affects millions of travelers while

providing no public notice or allowing for the traditional

checks on arbitrary or prejudicial enforcement. Secret law

has long been anathema to the government,” with statutes

such as the Freedom of Information Act and the Federal

Register Act designed to combat this very problem. In

enacting the Freedom of Information Act, for example,

Congress intended to "establish a general philosophy of full

> Harold C. Relyea, The Coming of Secret Law, 5 GOV'T INFO. Q.

97, 97 (1988).

* "Secrecy in government is fundamentally anti-democratic,

perpetuating bureaucratic errors." New York Times v. United

States, 403 U.S. 13, 724 (1971) (Douglas, J., concurring).

3

agency disclosure" since "[a] government by secrecy

benefits no one. It injures the people it seeks to serve; it

injures its own integrity and operation. It breeds mistrust,

dampens the fervor of its citizens, and mocks their loyalty.”°

Many of the well-understood problems of secret law

are present in the case at hand. The TSA Security Directive

(“TSA Directive”) is an order that regulates the conduct of

anyone who needs or plans to commute by commercial

airline, and is therefore an agency regulation that, in the

absence of public disclosure, violates constitutional due

process. Under 49 U.S.C. § 114(s), the TSA may develop

regulations “prohibiting the disclosure of information

obtained or developed in carrying out security” if disclosing

the information would “be detrimental to the security of [air]

transportation.”” The 2002 Homeland Security Act further

expanded this agency authority to withhold information on

the grounds that its disclosure would be detrimental to the

safety of people engaging in general transportation.’

In Public Citizen, Inc. v. FAA, the D.C. Circuit

determined that Congress intended that the FAA (and by

extension, the TSA) have authority to promulgate secret rules

that are security-sensitive pursuant to 49 U.S.C. app. §

1357(d)(2), which has since been amended and recodified at

49 U.S.C. § 40119 (by(1).8 In the notice of proposed

rulemaking on minimal staffing levels and minimal training

requirements for new employees, the FAA withheld

*§. Rep. No. 89-813 (1966).

° Gordon v. FBI, 390 F. Supp. 2d 897, 900 (N.D. Cal. 2004); see

also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 193 (D.C. Cir. 1993).

” See Chowdhury v. Norinwest Airlines Corp., 226 F.R.D. 608, 610

n.1 (N.D. Cal. 2004).

* 088 F.2d at 188-89.

4

instructions tailored to the particular needs of each airport

and air carrier. The FAA claimed that secrecy of the staffing

and training instructions was necessary to maintain the

integrity of airport security procedures. The D.C. Circuit

rejected the plaintiff's argument that the secret rules violated

the notice-and-comment and publication requirements of the

Administrative Procedures Act, and the Freedom of

Information Act respectively.

There is a pivotal difference between the agency rules

at issue in Public Citizen and Gilmore. While Public

Citizen’s secret rule impacts internal agency practices,

Gilmore’s rule stretches beyond the agency to regulate the

conduct of anyone who has or who could potentially travel

by commercial airlines.” The Ninth Circuit agreed that the

Directive ‘imposes an obligation’ by requiring airline

passengers to present identification or be a ‘selectee’ . . .”"°

However, the Ninth Circuit used commercial-centric

language, such as the TSA Directive having a “‘direct and

immediate’ effect on the daily business of the party asserting

wrongdoing [the airline]” and that “aircraft operators . . . are

required to maintain approved security programs [that] must

comply with each Security Directive issued to the aircraft

operator by the TSA . . .”"’ This indicates that the Ninth

Circuit incorrectly construed the TSA Directive as primarily

regulating airline businesses.

* Cf Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992)

(explaining that material that was “designed to establish rules and

practices for agency personnel and . . . involved no ‘secret law’ of

the agency” could be withheld).

'° Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006).

'' Gilmore, 435 F.3d at 1133.

5

The TSA Directive is properly considered a “secret

law,” which Hardy v. Bureau of Alcohol, Tobacco, and

Firearms defines as “information withheld from the public

which defines the legal standards by which the public’s

conduct is regulated.”'? Through orders issued to airlines to

implement identification programs, the TSA Directive

regulates the conduct of the general public — which is

comprised of people who currently travel by conimercial

flight, as well as those who could contemplate travel.in such |

a manner. The Ninth Circuit suggested that “those who, like

Gilmore, refuse to comply with the identification policy”?

are likely to pursue other options, such as traveling by train

or driving, to exercise their right to interstate travel. Put

plainly, the Ninth Circuit recognized that the TSA Directive

creates a strong disincentive for the public to use the most

common form of modern cross-country travel — commercial

flight — and that the public will modify their behavior when

faced with this secret rule. A secret rule that creates such

substantial deterrents to a routine public activity and that

forces people to modify their behavior by either complying

with its terms or seeking alternate routes (in the present or

future) is a regulation of public conduct. The rule deters

individuals who are concerned about surrendering their

identification or surrendering their body and belongings to an

extensive and invasive search from attempting air travel

again, since they will not know what liberties are permitted

under the terms of the regulation.

" Hardy v. Bureau of Alcohol, Tobacco, and Firearms, 631 F.2d

653, 657 (9th Cir. 1980).

'. Gilmore, 435 F.3d at 1133.

6

Agency rules that coerce actions of the public and

that are not published, are inconsistent with due process. Due

process is violated even where disclosure of such rules would

adversely affect transportation safety. Thus, withholding

information about the TSA Directive — information that

defines the legal standards by which the public is regulated -

raises due process concerns.

Ii, | Laws Withheld from the Public Require Even

Stricter Scrutiny than Vague Laws

The same values that are offended by vague laws are

violated to an even greater extent by laws that are hidden

from the public. In either case, members of the public are

denied both a reasonable opportunity to comply with the law,

and the assurance that they will not be subject to arbitrary or

discriminatory enforcement of the laws. However, in the case

of a vague law, the public has at least the ability to examine

the language of the statute and make its case to the judiciary

that the language does not pass constitutional muster. The

individual can likewise compare the language of the statute

to its application in her particular case. An individual cannot

adequately challenge a law invisible to public oversight if he

cannot ever read that law himself and present to a fact-finder

how it has been misapplied. Even if a court can review the

language in camera, only one party to the suit is capable of

presenting its case in an adversarial setting. Because of these

considerations, a law withheld from public scrutiny that

impacts millions of Americans should not be permitted.

A. The Directive's Secrecy Denies Individuals a

Reasonable Opportunity to Comply with the

Law

7

In order to satisfy due process, a law must be

sufficiently clear to provide individuals with a reasonable

opportunity to comply with the law. Airline personnel gave

directly contradictory statements about the secret TSA

Directive at each encounter with Gilmore.

On July 4, 2002 . . . [Gilmore] attempted to

fly from Oakland International Airport to

Baltimore-Washington International Airport

on a Southwest Airlines flight... .

[T]he [Southwest ticket counter] clerk

informed Gilmore that identification was

required . . . . Gilmore asked whether the

requirement was a government or Southwest

rule, and whether there was any way that he

could board the plane without presenting his

identification. The clerk was unsure, but

posited that the rule was an “FAA security

requirement.” The clerk informed Gilmore

that he could opt to be screened at the gate in

lieu of presenting the requisite identification .

. . . At the gate, Gilmore again refused to

show identification. In response to his

question about the source of the identification

rule, a Southwest employee stated that it was a

government law. Gilmore then met with a

Southwest customer service supervisor, who

told him that the identification requirement

was an airline policy....

That same day, Gilmore went to San

Francisco International Airport and attempted

to buy a ticket for a United Airlines flight to

Washington, D.C. While at the ticket counter,

Gilmore saw a _ sign that read:

“PASSENGERS MUST PRESENT

IDENTIFICATION UPON INITIAL

CHECK-IN”... . The [ticket counter] agent

told him that he had to show identification at

the ticket counter, security checkpoint, and

before boarding; and that there was no way to

circumvent the identification policy. A United

Airlines Service Director told Gilmore that a

United traveler without identification is

subject to secondary screening, but did not

disclose the source of the identification policy.

United's Ground Security Chief reiterated the

need for identification, but also did not cite

the source of the policy. The Security Chief

informed Gilmore that he could fly without

presenting identification by undergoing a

more intensive search . . . [that] included]

walking through a magnetometer, being

subjected to a handheld magnetometer scan,

having a light body patdown, removing [his]

shoes, and having [his] carry-on baggage

searched by hand and a CAT-scan machine. .

In other words, Gilmore was informed that there was

a rule which might be either a government rule or an airline

policy; which either did or did not require him to show

identification - which was required either at the check-in

counter, at the gate, at a security checkpoint, or at some

combination of those locations; and which either did or did

not give him the option to choose a secondary screening

search instead. Contrary to the Ninth Circuit's assertion,

'* Gilmore, 435 F.3d at 1130.

9

notice to the public as to what conduct was required, and by

whom, was defective.'°

B. The Directive's Secrecy Prevents Meaningful

Review and Allows for Arbitrary Enforcement

The secrecy shrouding the TSA Directive shields

responsible parties from being held accountable for the

effects of the regulation on members of the public. Courts

have a clear role in providing meaningful judicial review of

executive action, and a functional checks-and-balance system

requires more than agency assertions of legality and due

process. This Court recognized in Hamdi v. Rumsfeld that

“history and common sense teach us that an unchecked

system of detention carries the potential to become a means

for oppression and abuse of others who do not present that

sort of threat.”"© Meaningful judicial review is necessary

even in an era of international conflict and sustained threats

to national security — for how is one to seek redress for

improperly applied regulations if one cannot have the

restrictions imposed independently reviewed?

After conducting an in camera examination of the

Directive, the Ninth Circuit concluded that because “the

Directive articulates clear standards . . . [and] notifies airline

security personnel of the identificatic: requirement and gives

them detailed instructions on how to implement the policy[,]

. . . [and] because all passengers must comply with the

identification policy, the policy does not raise concerns of

arbitrary application.”'’ However, even if the instructions are

'S Gilmore, 435 F.3d at 1153.

'6 542 U.S. 507, 530 (2004).

'7 Gilmore, 435 F.3d at 1136.

10

clear, their application may not be. The problems of arbitrary

enforcement are not found in the potential confusion of law

enforcement, but in the threat that law enforcement may

abuse its powers behind the shield of a law: “Where the

legislature fails to provide such minimal guidelines, a

criminal statute may permit a '‘standardless sweep [that]

allows policemen, prosecutors, and juries to pursue their

personal predilections.""'® Whether the pretext for an officer's

predilections rests in the possible interpretations of a vague

statute, or within a set of regulations that an individual

cannot view in order to challenge its application, the harm is

still present.

Discrepancies in the implementation of the

identification policy are likely to exist in spite of detailed

instructions. The customized nature of the TSA orders

(tailored to address the needs of each airport and air carrier)

means that implementation procedures already vary.

Compounded with the multiple possible interpretations of

words used in the instructions in the orders, the application of

the identification policy will be anything but uniform as

applied to all airports and air carriers. This is exacerbated by

the fact that the Directive is enforced not only by numerous

public employees and law enforcement in their official

capacities, but also by private airline employees numbering

in the hundreds of thousands.'? The secrecy attached to the

'® Kolender v. Lawson, 461 U.S. 352, 357 (1983). (quoting Smith v.

Goguen, 415 U.S. 566, 575 (1974)).

'° According to the U.S. Department of Labor's Bureau of Labor

Statistics, there were over 160, 000 workers in these jobs in 2005.

See Bureau of Labor Statistics, U.S. Department of Labor,

Occupational Employment Statistics, Reservation and

i]

orders frustrates the individual’s attempt to differentiate

between whether his liberties are being compromised by

improper or arbitrary implementation of the TSA orders or

by valid regulation, and to seek redress accordingly.

Multiple interpretations of the policy are not purely

theoretical, either. As noted above, Gilmore received

multiple contradictory statements as to what was required

and permitted under the policy. Assuming that the policy

allows any traveler to forgo providing identification in lieu of

selectee screening, for instance, an agent refusing this option

to all members of a minority race, for instance, would come

under no scrutiny by the public, or the courts. So long as

individuals are unable to view the policy, no one individual

subject to arbitrary, prejudicial, or biased enforcement of the

Directive would be able to tell if she was afforded disparate

treatment. ,

Iii. The Security Directive Containing an

Identification Requirement is Void for

Vagueness

The Ninth Circuit rejected Gilmore’s vagueness

challenge on three grounds: (1) the TSA Directive does not

impose any criminal sanctions; (2) Gilmore had actual notice

of the TSA Directive; and (3) the TSA Directive articulates

clear standards. However, case law does not completely limit

application of the void-for-vagueness doctrine to penal

statutes; Gilmore did not have actual notice of the TSA

Directive; and although the TSA Directive might articulate a

Transportation Ticket Agents and Travel Clerks, May 24, 2006,

http://www.bis.gov/oes/current/oes434181.htm.

12

clear standard, that standard is unknown to the parties

charged with enforcement.

A. Case Law Does Not Limit Application of the

Void-for-Vagueness Doctrine to Penal Statutes

Although John Gilmore was penalized for non-

compliance with the TSA Directive, the Ninth Circuit

decided that because his penalty “simply prevents... [him]

from boarding commercial flights” the void-for-vagueness

doctrine did not apply.” The Ninth Circuit reached this

decision by considering and distinguishing only one aspect of

one of several cases presented by the plaintiff in suppor of

vagueness.”' Thus, this determination was based on an

incomplete analysis of case law.

In his opening brief to the Ninth Circuit, Gilmore

argues that the TSA Directive violates the Due Process

clause of the U.S. Constitution because the unpublished

nature of the TSA Security Directive renders it overly

vague.” To support his argument, Gilmore cites Kolender, a

case in which the Court held that a California statute was

unconstitutional because the law was not drafted with

“sufficient definiteness that ordinary people can understand

what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” The

Ninth Circuit, however, dismissed the argument stating, “the

0 Gilmore, 435 F.3d at 1135.

2" Id.

2 Brief of Petitioner-Appellant at 40, Gilmore v. Gonzales, 435

F.3d 1125 (9th Cir. 2006), available at

http://papersplease.org/gilmore/_dl/Gilmore%20v.%20Ashcroft%2

08.16.04.pdf.

3 Kalender v. Lawson, 461 U.S. 352, 357 (1983).

13

Supreme Court stated that this doctrine ‘requires that a penal

statute define the criminal offense with sufficient

definiteness that....””’* The Ninth Circuit added emphasis to

“penal statute” and used that phrase to differentiate Kolender

from Gilmore's claim.”°

This differentiation, however, is erroneous. In the

Kolender decision, Justice O’Connor summarized the Court's

vagueness jurisprudence as permitting “a facial challenge if a

law reaches ‘a substantial amount of Constitutionally

protected conduct’” adding “where a statute imposes criminal

penalties, the standard of certainty is higher.””° The Kolender

decision does not require a challenge to a criminal statute; in

fact the Kolender decision recognizes the possibility of a

vagueness challenge to a non-criminal regulation, rule, or

order as Gilmore has done here.

In addition to Kolender, Gilmore cited Hoffman

Estates v. Flipside, which dealt with a licensing ordinance that

the Court described only as "quasi-criminal."*’ This Court

has also applied the void-for-vagueness doctrine in a number

of cases where civil penalties were at issue.”* .

4 Gilmore, 435 F.3d at 1135 (citing Kolender, 461 U.S. at 357

(emphasis added in Gilmore)).

25 Id.

6 Kolender, 461 U.S. at 358 n.8& (citing Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982) and

Winters v. New York, 333 U.S. 507 (1948)). In a void-for-

vagueness claim, a differentiation between penal and civil statutes

only impacts the standard by which a facial review is conducted.

Id. Thus, while slightly more vagueness might be allowed in a

civil, rather than criminal statute, civil statutes must still be

reviewed for vagueness and voided if they are too indefinite.

7 455 U.S. 489, 499 (1982).

8 See, e.g., Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)

(concerning assessment of fees against a defendant) ("So here this

14

B. John Gilmore Did Not Have Actual Notice of

the TSA Directive

John Gilmore cannot be said to have actual notice of

the TSA Directive. At best, Gilmore was given incomplete

notice of a regulation, rule, or order with a reference that the

requirement was either a “government law” or “airline

policy.””? The Ninth Circuit determined that Gilmore had

actual notice because severai airline personnel informed him

of an identification policy required to board the plane.”° In

addition, the Ninth Circuit found that a sign in front of a

ticket counter was sufficient notice of the TSA Directive to

constitute notice to Gilmore.’' However, this determination

by the Ninth Circuit is based on an incomplete analysis of the

facts. As seen above, Gilmore was given a number of

differing statements of the rule, including the source of the

directive, the location at which he had to present

identification, and what alternatives were available to the

identification policy. |

Gilmore might have had some notice of an

identification and/or search requirement, but the various

interpretations and sources of the requirement cannot be

construed to constitute actual notice. The Ninth Circuit's

conclusion that Gilmore had adequate notice is based on an

incomplete factual analysis.

state Act whether labeled ‘penal’ or not must meet the challenge

that it is unconstitutionally vague."); see also Bankers Life &-

Casualty v. Crenshaw, 486 U.S. 7 ', 87 (1988) (O'Connor, J, with

Scalia,, J., concurring) (applying the doctrine to punitive

damages).

?? Gilmore, 435 F.3d at 1130.

*° Id. at 1135.

*! Id. at 1136.

15

C. Even if the TSA Directive Articulates a Clear

Standard, That Standard is Unknown to the

Parties Charged with Its Enforcement

It is clear from the Ninth Circuit opinion that there

exists a TSA Directive requiring a traveler to present

government-issued identification before entering the gate

area of an airport or boarding a plane.”? However, it is also

clear based on John Gilmore's experience that the airline

agents charged with enforcement are either unaware of the

standards set forth in the TSA Directive or were deliberately

misleading Gilmore as to the specifics of that Directive.

The Ninth Circuit determined after its in camera

review of the TSA Directive that the Directive “provides a

‘definitive statement’ of TSA’s position by detailing the

policy and the procedures.”*” However, in practice, the

policy and procedures are not definitive and are applied in an

unexpected and inconsistent manner. Many of those

individuals charged with enforcing the policy could not even

accurately state its terms. For this reason, it is clear that this

undisclosed law enforced against the general public cannot

survive a void-for-vagueness claim.

Unless the secrecy masking this rule is lifted, we risk

living in an increasingly Kafka-esque world, where “[iJt is

not necessary to accept everything as true, [but rather] one

must only accept it as necessary.”**

32 Td. at 1133.

33 Id.

> FRANZ KAFKA, THE TRIAL (1925).

16

IV. Withholding the Text of the Directive From

Those it Regulates is Contrary to the Statutory

Intent of the Aviation and Transportation

Security Act

The identification requirement is withheld from

Gilmore and the public because of its classification as

"sensitive security information” ("SSI"). Under the Aviation

and Transportation Security Act, the TSA is authorized to

withhold from public disclosure 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 information or financial

information; or (C) be detrimental to the security of

transportation."*° Regulations promulgated by TSA under

this statute withhold a broad range of information, including

not only the categories of information specified oy statute,

but also adding several new ones.*° The added categories

include security directives issued under 49 C.F.R. §

_ 1542.303. Not only does this inclusion expand the definition

of SSI beyond its original statutory boundaries, withholding

the identification requirement fails to meet any of the stated

statutory requirements for information to be classified as SSI.

Revealing the text of the directive that requires

passengers to present identification obviously does not

disclose either private information, nor does it reveal trade

secrets. Nor, notably, is it at all detrimental to the security of

transportation. As the Ninth Circuit noted, the essentials of

the requirement are known to all--that passengers must

549 U.S.C. § 114(s)(1).

3649 CFR. § 1520.5.

17

display identification.*’ In fact, it is fully necessary for the

public to be aware of this demand. Allowing the public to see

the specific text that authorizes the requirement does not

reveal any of the sensitive information contemplated actually

listed by TSA in its regulations.”*®

Nor would revealing the policy provide potential

terrorists with the means to circumvent it. According to the

- Ninth Circuit's in camera review, the directive applies to all

travelers, giving a potential malefactor no way to game the

system, even should the text of the directive, like all

generally applicable laws, be available to the public.*”

The Ninth Circuit gives no reason for the

requirement's classification as SSI, other than the agency's

sole determination that, as a Security Directive, the

requirement should be unseen by the public. Nowhere is

there an indication that the government shown how the

directive's secrecy at all promotes safety, or how its

publication would be detrimental to security. With no

obligation to provide even a rudimentary justification, any

particular information stylized as a "security directive” could

evade public notice and comment, and restrict any potential

challenge to its validity or secret status to an in camera

review at the appellate level. Such a precedent would grant

the TSA an impermissible amount of discretion in what it can

37 Gilmore, 435 F.3d at 1153.

*® More likely candidates for information that, if revealed, might

harm security include vulnerability assessments (49 C.F.R.

§1520.5(b)(5)); details of inspections revealing vulnerabilities (49

C.F.R. §1520.5(b)(6)(i));_ threat information (49 C.F.R.

§1520.5(b)(7)); information regarding screening equipment (49

C.F.R. §1520.5(b)(9)).

*® Gilmore, 435 F.3d at 1154.

18

withhold from the public. Moreover, it would collapse a

fundamental distinction between certain facts, which the

government may under some circumstances withhold from

public scrutiny, and the legal basis for government action,

which if this Court permits an agency to withhold, opens the

door to secret law, secret government, arbitrary action, and

the use of unaccountable coercive power against millions of

Americans in their daily lives.

CONCLUSION

In this case, the government refuses to disclose the

text of a regulation compelling air travelers to present

identification. A generally applicable law or regulation that is

not disclosed to the public it regulates violates due process,

creating the potential for uncertainty and abuse of discretion.

Such a regulation is also void for vagueness. Furthermore,

the Transportation Security Administration's classification of

the regulation as "sensitive security information" is counter

to, and fails to serve the purposes of, the law that authorizes

such classification.

Mr. Gilmore’s petition for a writ of certiorari should

be granted so that this Court may have the opportunity to

review a secret agency rule that offends the Constitution and

implicates the rights of millions of American travelers who

are presently subject to arbitrary and unaccountable

governmental authority.

Respectfully submitted,

MARC ROTENBERG

Counsel of Record

19

SHERWIN SIY

ELECTRONIC PRIVACY INFORMATION

CENTER (EPIC)

1718 Connecticut Ave., NW, Suite 200

Washington, DC 20009

(202) 483-1140

COUNSEL FOR AMICUS CURIAE

November 13, 2006