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Which of the following is strange-but-true?

· There are secret U.S. laws no one's allowed to see even though they are obligated to obey, or

· You can fly within the U.S. on commercial airlines without showing ID.

Actually, both propositions are correct, as revealed in a decision from the U.S. Ninth Circuit Court in January 2006 dealing with the right to fly without identification.

Curiously enough, the court said, it's exactly one of those secret, with-the-force-of-law Homeland Security dictates that establishes the right to fly without showing government photo ID. That is, provided a passenger is willing to submit to a more thorough-than-usual search of his person and belongings.

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Privacy tanks

Anyone who flew in the U.S. before 1996 can remember the days when -- at least on domestic flights -- ticket agents never asked for ID and passengers could travel under any name.

What changed that was an evident misunderstanding. When TWA flight 800 exploded after taking off from New York in July 1996, many suspected a bomb. A faulty fuel tank was later judged the cause. But in the wake of the crash, Bill Clinton imposed, as a gesture to victims' families, a requirement to prove identity at check-in.

Even post-9/11, those with, say, lost or forgotten wallets can fly in the U.S. without showing ID -- at least if they seem sympathetic and their color, creed, or nationality doesn't offend ticket agents and guards.

Some flyers report successfully making it to their assigned seats with nothing more than a reservation and a library- or customer-loyalty card.

But an actual right to fly without ID was more than just something secret; it is contrary to what's asserted in official signage -- and often by gun-toting uniformed officials -- at every U.S. airport.

It took a court challenge to tease out of Homeland Security recognition of such a right to fly anonymously -- an acknowledgment that, maybe predictably, set the stage for the agency to propose this August new rules that would appear to whisk that possibility away.

A capital idea

The story begins with how John Gilmore decided to spend Independence Day the year after 9/11.

A founder of Sun Microsystems and staunch civil-libertarian, Gilmore sought to assert the right to travel without showing ID. So on July 4, 2002, he tried to fly from the Bay Area to Washington. The purpose of the trip? Why, to petition the federal government for redress over the requirement to show ID in order to travel.

On both Southwest and United airlines, Gilmore was turned away for declining to produce ID. Southwest employees offered differing opinions as to whether the requirement originated with the government or the company. A United ground-security chief offered to let Gilmore fly if he'd submit to a more intrusive inspection. Gilmore said no, and he never made it to Washington. Indeed, he hasn't flown on a commercial airliner since 9/11.

With further inquiries to United, a company official told Gilmore that security directives governing the precise requirements for IDing passengers came from the Transportation Security Administration, were secret, only transmitted orally, varied by airport, and frequently changed. No, he could not see the underlying rule.

Gilmore filed suit in federal district court against then-Attorney General Ashcroft and the two carriers. Gilmore's target was what he called "the Scheme" -- the whole process of IDing, pre-screening, and then rejecting air passengers not based on anything they were doing but because of something the government believed about their identity. All this violated, Gilmore contended, constitutional guarantees of free assembly, speech, and protection from unreasonable searches.

The district court was not convinced, and Gilmore took his case to the Ninth Circuit Court of Appeals, which limited the question to the requirement to show ID.

Attorneys for the Department of Justice didn't want to show its ID: the DOJ wanted to keep all its filings under seal, with only the judges -- not Gilmore, his attorneys, nor anyone else -- able to read them. The court balked, but agreed that the secret law governing travelers' ID would be kept secret, and shown only privately to the judges.

Without revealing the secret law's exact provisions, the court said that it offered travelers options -- including that of not presenting ID.

"Gilmore had a meaningful choice," wrote Judge Richard Paez. "He could have presented identification, submitted to a search, or left the airport."

Requiring ID in San Francisco did not prevent Gilmore from "associating anonymously in Washington, DC," Paez contended, "because he could have abided by the policy, or taken a different mode of transport."

Gilmore's complaint had cited the fact that intercity trains and bus lines also now demand passengers' ID, but the judge rejected the matter as not adequately explored.

Kafka or kangaroo?

In January, the U.S. Supreme Court rejected Gilmore's appeal of the Ninth Circuit ruling, with the high court thus giving a nod to the idea of secret laws that must be obeyed by people who can never know their content.

Still, in losing, Gilmore partly won. The Ninth Circuit made explicit a right to fly without showing identification, at the expense of a search likely to include a manual pat-down, a body-scan with a metal-detecting wand, and a guard rifling through your carry-on.

So how is that decision changing the situation on the ground?

"It's hit-and-miss," says Sacramento attorney Jim Harrison, who helped represent Gilmore. "Some people [who decline to show ID] can opt for a secondary search, while others get told 'Go away before we arrest you.'" Those who demurely confess to forgetting their, say, drivers licenses get less flak than those who wave the Ninth Circuit decision in TSA agents' faces and declare, "I don't need to show you my ID."

The Identity Project (Papersplease.org) encourages people to test flying without showing ID and to report back their experiences. Allow extra time, Harrison suggests. But also hurry -- Homeland Security is now proposing rule-changes that would seem to totally bar air travel without producing government-issue ID -- though with underlying rules secret, one can never be sure. A further court challenge seems likely.

It's a difficult area to litigate, Harrison says, because there's little precedent to go on: "We've never been here before -- we've never required ID to travel in our own country."

In a crazy world, there's often good reason to travel without a paper trail. In the U.S., if a 19-year-old crosses a state line and has sex with a 17-year-old friend, the older teen risks years in federal prison.

So are there other options for anonymous public transport?

"We ask passengers for their names so that we have a list of who are traveling," Greyhound bus spokesman Eric Wesley tells The Guide, "but even at that point, if they're not paying by credit card, we don't ask them to show proof of ID." Some Greyhound riders report some company clerks in fact demand to see papers. But with many other, smaller lines not even asking for names -- particularly in the burgeoning Chinese-run bus sector on the U.S. coasts -- this may be as close as anonymous traveling comes in the today's U.S.

A pity that from San Francisco, it's such a long ride to Washington. People wanting to travel without papers in America have plenty of time to ponder how they're sent to the back of the bus.

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See also:

Border Security at the Peace Bridge
Are your papers in order?

Policing Borders
In an era of barbed-wire frontiers, no-fly lists, and chipped passports, can we keep travel gay?

Stamp your Own Passport
Securing your right to travel in an age of snooping

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com