EU steps into digital rights debate

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Thanks Spoon

Thanks for approaching this with an open mind, and for putting in the time to do some research and teach me more about the case.

My own further reading has shown that the secret law in question is as nebulous as you seem to have found. There are these quotes from a Wired News story:

http://www.wired.com/news/privacy/0,1848,54464,00.html
As it turns out, there may be no such law on the books. Instead, carefully worded rules and statements allow airlines to make it seem that way. Under current federal regulations, they're only required to ask for ID, not to make it a condition of travel.

Yet TSA spokesperson Greg Warren insisted there is no federal ban on flying without an ID. "TSA requires air carriers to request a valid form of identification from a government issuer," Warren said. "The actual presentation of ID by passengers is not required. Refusal to allow passengers to board or not board the aircraft is at the discretion of the airline."

Copies of several Freedom of Information Act requests and FAA responses to them show the FAA repeatedly refused to release its directives to the public, but claimed "there is currently no prohibition against allowing someone on an aircraft without such identification."

So it looks like there may or may not be a law, and what gets allowed may or may not be up to the discretion of the airlines, although the airlines seem to be under the impression that there is a law and they have no leeway. I think it's all very confusing, and hopefully, one result of the court case will be giving us a clear picture of the law.

---Now if a person chooses not to have an ID then they can also choose to avoid doing the things that an ID is required for (or requested) and avoid public contact in general---

I think you raise a good question--where do those rights end? What are you required to give up for anonymity? To join in a society, you have some obligations, but where do those obligations begin and end?

---Now where we basically differ, it seems, is that I don't believe that the constitutional guarantee of privacy extends to an all encompassing and unassailable right to be able to override anyone elses right to be secure---

Does the Constitution provide you with the right to feel secure? Where exactly is that? Does it come with a blanket?

---The cruxt of the governments view is that this requirement is a "security directive issued by the FAA", which basically states that if a person doesn't produce an ID, then they must be subjected to other security measures that would accomplish the same means, such as a search to make sure that the person in question can be reasonably assumed to be no threat to the airline or other passengers.---

I'd be okay with this if it were actually being enforced this way, and clearly understood by all. I don't see any benefit that is served by having to show your ID, which is really just "security theater" and a waste of time and money.


---So I don't believe that a persons perceived right of anonimity extends into the public domain.---

There is much legal precedent for the right to anonymity (from one of Gilmore's websites):

http://freetotravel.org/faq.html

Q. Do people really have the right to anonymity?

Yes. People going about their lawful business cannot be compelled to identify themselves. And this protection extends even further when the people are engaged in activities protected under the Constitition.

For example, anonmyous publishing and pamphleteering has been upheld in many Supreme Court cases. In Talley v. California (1960), the Supreme Court threw out an ordinance that required the distributor of flyers to print their name and address on them. The Court stated that "It is plain that anonymity has sometimes been assumed for the most constructive purposes."

The Supreme Court explicitly recognized the value of anonymity in the context of freedom of association in NAACP v. Alabama ex rel Patterson (1958), a case in which the NAACP refused to turn over its membership list, to protect the members from being harrassed. In that decision the Court held, among other things, that to require individuals to step forward and be identified to assert their free-association rights would be, in effect, to negate those rights.

The Federalist Papers explained the justification for the American Revolution. They were written anonymously, published with pseudonyms.

The Supreme Court has upheld anonymous publication virtually every time it has considered the question. The most recent such case was decided on June 17, 2002 (Watchtower v. Village of Stratton). In that decision they said, quoting a previous decision, "...there are a significant number of persons who support causes anonymously. The decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible."

Many other courts have decided similarly. The Colorado Supreme Court decided in 2002 in the Tattered Cover case that people who buy books have a right to anonymity, even when the government has a legitimate law enforcement interest in who the buyer was. They refused to let a district attorney subpoena the name and address to which a purchased book was mailed.

Q. Isn't anonymity bad?

People can use anonymity for bad things, but they can use other rights for bad things too. You can use free speech to say hurtful things. You can practice religions that make you cruel and intolerant. You can commit a crime and then avoid torture that would make you confess. You can petition the government to build a police state run on Oracle servers.

But those are all minor harms compared to what would happen if we were not free to do those things. Many governments (past and present) imprison their citizens for speaking out against the government, or for merely seeking out information that the government disapproves of. Many governments impose a state religion and are not tolerant of unbelievers. Many governments do torture people. And many governments do run police states that track and potentially block their citizens' every move, every plane flight, every email, every web site, every publication.

Acquiesing to a demand that people in the US identify themselves to publish, to associate, to buy, to work, or to fly, would encourage evil people to seek the reins of government power. Because once politicians or bureaucrats can track what all the citizens are doing, saying, where they are going, and who they are meeting, the powerful can "outlaw their opposition", by quietly arresting them, or merely by making it harder and harder for the opposition to communicate, travel, work, or live.

Q. Do people really have the right to travel anonymously?

There hasn't been a Supreme Court case yet that directly asked the question of whether Americans have the right to travel anonymously inside the United States. We believe that people do have that right, and hope that the courts will choose to say so.

Q. Why is anonymity so important to you?

Anonymity is important because it is a practical way to avoid many forms of illegitimate power.

If you buy your groceries with cash and never give your name, it's harder for the store to sell your purchasing habits to anyone else. It's harder for the FBI to tell what books you are buying, or who you are meeting for dinner, or where you are flying, or who you are flying with, if you don't give out your name when you do those things.

For example, the Census Bureau helped the US Government round up all the Japanese-Americans during WW2, by telling them how many Japanese lived on each block of each town in the US. If those people had had the sense to not fill out their Census Bureau forms, they would not have spent years illegally jailed.

Living anonymously is a small, personal choice that powerless people can do to protect themselves from powerful organizations. That is why so many powerful organizations want to eliminate anonymity.

Q. Why is anonymity so important to the right to travel?

Most travel is for meeting other people. I fly to see my family, you fly on business, she flies to meet her best friend, he flies for a romantic vacation with his sweetheart, she flies to a conference, they fly to a political event. Meeting with people is part of "free association", which just means being free to associate with whoever you want to.

Undemocratic governments traditionally try to prevent people from associating anonymously, because most credible challenges to government policies occur from groups of people who meet and agree to work together. Racist Southern states passed laws 50 years ago to require the National Association for the Advancement of Colored People to give its membership list to the state -- so that the members could be harassed or killed by Ku Klux Klan members who were often local racist politicians and law enforcement officers. The Supreme Court struck down those laws. The NAACP was able to gather broad support for changing our racial policies, and we had a relatively peaceful transition to a much less racist society. These racist governments wanted to scare people away from joining the reform movements, either by harassing existing members, or by making people afraid to join. If they had gotten their way, we would still have terrible racial policies, or the people most affected by those policies would have had to resort to violence to get the policies changed. If the government had a database tracking the movements of NAACP leaders and those who attended its rallies and events, then the government could harass the organization without ever getting the membership list.

In addition, the First Amendment gives us the right to petition our government for redress of grievances. We can petition anonymously, and sometimes we must, when seeking to change draconian laws that the government would like to apply to us. A small number of the people who protested the WTO in Seattle were violent, but that is no excuse for seeking to identify WTO protesters in general, or to prevent them from traveling to the next anti-WTO protest. If the government could track everyone who flew to Seattle that week, and mark them as suspected terrorists, then their freedom to anonymously petition would be violated.

As Americans, we are pretty smug about our freedom; we don't even think about how we would take it back if suddenly a planned demonstration or political meeting was "canceled" because 90% of the attendees had been mysteriously stopped from flying or driving or taking the train or bus to attend. But the "transportation security" system and the profiling and databases behind it are all poised and ready to do exactly that. All it will take is a bureaucrat or politician who says "Do it", because all the mechanisms will already be built. It was only 60 years ago that hundreds of thousands of Americans were imprisoned solely for their Japanese cultural heritage. Only 40 years ago that anti-war and civil rights protesters were bugged, followed, smeared, arrested, impersonated, and disrupted by the supposedly lawful government. Only 30 years ago that a Republican President was bugging the Democratic National Committee. Only ten years ago that our prison population was half what it is today, with the increase coming from imprisoning black and Latino innocents over victimless crimes like drug use. Only two years ago that a Presidential election was close enough to warrant fraud investigations. I'm not talking about a banana republic somewhere else; I'm talking about our own country. Abuse of government surveillance, and suppresison of unpopular minorities, are documented facts right here in the US, not unrealistic or remote fears.

---So we will have to wait to see about this "secret law" business. And I am open to the possibility that you are correct about the dangers involved with such laws, but I don't see it myself.---

I do understand that governments must maintain some secrets in the interest of national security. I don't see this as one of those situations. If it's a law we must obey, we must be told that it exists. Interesting to see that most of the major newspapers have joined in on the case and added their support as a "friend" of the plaintiff. Secret laws and secret trials are a bad precedent to set.

Posted by: tic swayback   Posted on: 02/11/05 You are currently: a Guest | Members login | Terms of Use

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