No. 04-15736 IN THE UNITED STATESCOURTOF APPEALS FORTITENINTH CIRCUIT
John Gilmore Appellant,
V.
John Ashcroft, et al., Appellees.
District Court for the On Appeal from the United States Northern District of California CaseNo. CV-02-03444-SI HonorableSusanIllston. United District Court Judse
Brief of Amicus Curiae The Centerfor ConstitutionalRights and PrivacyActivismin Supportof Appellant,John Gilmore
DEBORAHPIERCE LINDA ACKERMAN PRIVACYACTIVISM
402618th Street SanFrancisco, 94114 CA
RACHELMEEROPOL CENTERFOR RIGHTS CONSTITUTIONAL
7th 666Broadw&y, Floor New York, NY 10012
(4rs)22s-r730
(2r2)614-6432
TABLE OF CONTENTS
TABLE OF AUTHORITIES INTRODUCTION STATEMENTOFINTEREST. ARGUMENT. CONCLUSTON. APPENDIX A APPENDIX B .......ii ..........1 ...........1 ................2 ...........10
TABLE OF AUTHORITIES Aptheker Secretarv State v. of 378U.S.500(1964)........ . .. ..........9 Attorney Generalof New York v. Soto-Lopez, ) 4 7 6U . S .8 e 8( 1 e 8 6 . . . . . . . ..............3 E d w a r d s . C a l i f o r n i a , 3 I 4 . S .1 6 0( 1 9 4 1 ) . . . . . . v U . ............3 v. Nevada, U.S.(6 Wall.)35 (1867)....... Crandall 73 .....4 DOT v. Pub.Citizen,124S. Ct. 2204(2004).... .............. 6 (1965) v. Griswold Conn., 381U.S.479 ....... 10 (8.D.Ark. 1970)....... Holt v. Sarver,309 Supp. F. 362 .................7 Houstonv. Federal Aviation Admin.,679 F.2d Il84 ( 5 t hC i r . 1 9 8 2 ) .............5 Kansas UnitedStates, F.3d 436(D.C.Cir. 1994)...... v. 16 .............5 K e n tv . D u l l e s , 3 5 U . S .1 1 6( 1 9 5 8 ) 7 ..............3 (1995) Mclntyrev. OhioElections .......... 10 Comm'n,514 U.S.334 Miller v. Reed,176F.3d 1202(9thCir. 1999)........ .....3-4 Monarch Travel Servs..Inc. v. Associated Cultural (9thCir. 1972) Inc. Clubs. , 466F.2d552 ............... 5, 9 (2004) I Rasulv. Bush, 124Sup.Ct. 2686 ........ Regan Wald, 468U .5. 222 ( I 984) v. ............... 3 (1981) R h o d e s . C h a p m a n , 4 5U . S .3 3 7 v .......7 2 (1973)..... ..........3-4 v S a e n z . R o e , 5 2 6 . S .4 8 9 U (2dCir. 1974) 5, l0 UnitedStates Albarado,495F.2d799 v. ...............4 U n i t e dS t a t ev . G u e s t , 3 8 U . S .7 4 5( 1 9 6 6 ) . . . . s 3 (8th Cir. 1973) .5, 10 v. UnitedStates Kroll,481 F.2d 884 ....l0 v. UnitedStates Lopez,328F. Supp.1077(E.D.N.Y.l97I).... .........3 Z o b e lv W i l l i a m s , 4 5 7 . S .5 5 ( 1 9 8 2 ) . . . . . U
I. Introduction This brief of Amici Curiaeis submittedin supportof JohnGilmore's appealto the United States Court of Appealsfor the Tenth Circuit to reverse the decisionof the United States District Court for the Northern District of Mr. Gilmore'sclaims. Californiadismissing II. Statementof Interest that Amici Curiaeare two non-profit organrzations support Proposed JohnGilmore'srisht to travel. The Cent.r;, Rights is a nationalnon-profit legal, Constitutional
to dedicated advancingand educationaland advocacyorganization protectingthe rights guaranteed the United States Constitution. Founded by in 1966during the Civil Rights Movement,the Centerhas litigated including a recentvictory beforethe numerouslandmarkcivil libertiescases, Supreme Court in Rasulv. Bush. 124 Sup.Ct. 2686 (2004). The Centeris of through its representation also involved in freedomto travel issues hundredsof individualswho face civil fines for allegedlybreakingthe U.S. embargoof Cuba. to dedicated informing PrivacyActivism is a non-profit organization and empoweringindividuals abouttheir privacy rights. Throughpublic education,activism,and legal work, it strivesto make complex issuesof
to accessible all. Because privacy law, policy, and technology taken PrivacyActivism feelsthat the ruling in this casehasnot adequately on into accountthe impact of proliferatingidentificationrequirements it privacy concernsinherentin the right to travel anonymously, believesthe District Court ruling shouldbe reversed. ProposedAmici believe the attachedbrief is desirablein this case becausethe issues presentedby the case are complex and the matters of brief are relevantto the disposition this case. All in asserted the attached partieshave consented the filing of this brief. to III. Argument of Mr. Gilmore has allegedthat the existence secretI.D. requirements right to travel, and that him from exercisinghis fundamental have prevented and petition he was therebyunableto visit his family, engagein business, the governmentin Washington. The lower court erredin finding that Mr. Gilmore had not stateda claim basedon the right to travel. Amici urge that this court reverseand remandas relatedto this claim for the following reasons. and groundedin the is The right to travel betweenstates fundamental 476 AttorneyGeneralof New York v. Soto-Lopez. U.S. U.S. Constitution; has the to 898. 901 (1986)("Freedom travelthroughout United States long
beenrecognizedas a basicright underthe Constitution."). The Supreme Court has locatedthe right variously in the Privilegesand Immunities Clause the of Article IV (Zobelv Williams.457U.S. 55.71 (1982)); Commerce (1941)); Privileges the 314 U.S. 160.173-74 (Edwards California. v. Clause (Id. at \77-78); and the Due Amendment and ImmunitiesClauseof the 14'h (Reganv. Wald. 468 U.S. 222. 240 Process Clauseof the Fifth Amendment
(1e84)).
Whereverlocatedtextually, however,the U.S. SupremeCourt and the right. Kent v. travel is a fundamental Ninth Circuit agreethat interstate at Dulles.357 U.S. 116.126(1958)("fT]hatright fto travel]was emerging leastas early as the Magna Carta. . . It may be as closeto the heart of the individual as the choice of what he eats,or wears,or reads. Freedomof v. of movementis basicin our scheme values.");seealso,Saenz Roe. 526 U.S. 489. (1973)("[T]he right [to travel] is so importantthat it is assertable action . . . a virtually as againstprivate interference well as governmental by unconditionalpersonalright, guaranteed the Constitutionto us all.") Cir. (citationomitted);Miller v. Reed.176F.3d 1202.1205(.9th 1999). The right to travel is violated when travel is concretelyand practically burdenor which unreasonably rules and regulations disruptedby "statutes, restrictthis movement." Saenz.5261J.5.at 499. Accordingly, the Supreme
Court has ruled againstsuchimpediments a statelaw charginga oneas dollar tax on thosewho passthroughthe state(Crandallv. Nevada.73 U.S. (6 Wall.) 35 (1861) and rulesmakingit difficult for African-Americans to travel freely in and out of a state(United States Guest.383 U.S. v.
(re66)). 74s
In dismissing Mr. Gilmore'scase, District Court reliedon a line of the cases holding that "the Constitutiondoesnot guarantee right to travel by the any parttcularform of transportation." Gilmore v. Ashcroft, No. C 02-3444 SI, 2004U.S.Dist. Lexis 4869, * l9 (N.D. Cal.Mar. 19,2004), at citing Miller v. Reed.176F.3d 1202.1205(9th Cir. 1999)(denying right to travel claim in casein which plaintiff was denieda driver's licensebecause his religion preventedhim from giving his social securitynumberto the DMV). In Miller, The courtheld that the plaintiff was still in possession his right of to travel because there were otherforms of transportationavailable to him. Id. He could, without giving his socialsecuritynumber,buy a ticket for a common carrier,hire a licenseddriver, or get a ride with an associate. Id. This caseand otherslike it merely standfor the propositionthat a burdenon a single form of transportation doesnot rise to the level of constitutional violation if other forms of transportation reasonably are available. See,e.g., MonarchTravel Servs.. Inc. v. Associated CulturalClubs.Inc.. 466F.2d
552.554(.9thCir. 1972)("A rich man can choose drive a limousine;a to poor man may haveto walk."); Kansas United States. F.3d 436.442 v. 16 (D.C. Cir. 1994)(it is not unconstitutional burdenairlinetravelto Love to Field when Dallas-FortWorth airport is availablenearby);Houstonv. Federal AviationAdmin..679 F.2d 1184,1198(5th Cir. 1982)(not unconstitutional burdenairline travel to National Airport when Dulles is to nearby). Each of thesecases involve situationsin which it is relatively easy for travelersto access other forms of transportation. In this day and age,however,thereare many circumstances which in there is nothing comparable airline travel. See,United States Albarado. to v. 495 F .2d 799- 807 (.2dCir. 197 ("While it may be arguedthereare often 4\ other forms of transportation available,it would work a considerable hardshipon many air travelersto be forcedto utilize an alternate form of transportation."); v. United States Kroll. 481 F.2d 884 8 8 6 (8th Cir. 1973)("It might be suggested a prospective that airlinepassenger will not actuallybe deprivedof his right to travel because thereare alternativemeansof travel available.We do not find this argument persuasive flying may be the only practicalmeans since,in many situations, " of transportation.) (internalcitation omitted).
For this reason,Mr. Gilmore's casepresents factual situationthat is a distinguishable from the cases relied upon by the District Court. Not only are altematemodesof transportation inadequate an substitutefor lonsdistanceair travel, but all thosealternative modesare also burdenedin the sameway as air travel: they requirepassengers presentidentification. to Even where the courtshave allowedthe burdenineof air travel"thev have justified it by the availability of other,equivalent,unburdened forms of transportation.When all other forms of transportations identically are burdened even if not bv the samelesislativeact - the existence those of other optionscannotsavethe challenged regulationfrom Constitutional infirmity. Governmentregulationsdo not occur in a vacuum,but in a mosaicof other regulationsand circumstances give the law its ultimate effect. For that this reason,the SupremeCourt will often declineto considergovemment actionswithout considering contextor the totality of circumstances the in which thoseregulationsoperate, determinetheir true impact. See.e.s., to ("[a]n agencyis required DOT v. Pub. Citizen.124S. Ct. 2204.2215(.2004\ to evaluatethe cumulativeimpact of its action . . . when addedto other past, present,and reasonably foreseeable of future actionsregardless what agency (Federalor non-Federal) personundertakes suchother actions.");Rhodes or
v. Chapman. 452 U.S. 337. 364 (1981)(inhumane treatment prisoners of may arise from the "cumulative impact" of many small conditions,none of which would be inhumane when considered alone);Holt v. Sarver. 309 F. Supp.362. 373 (E.D. Ark. 1970)("One cannotconsider separately trusty a system. . . barracks. . . isolationcells,or an absence meaningful ofa program of rehabilitation.All of thosethings exist in combination;each affectsthe other; and takentogetherthey have a cumulativeimpact on the inmates. . ."). Similarly,the government cannotpassa mosaicof regulationsthat work togetherto burdenall travel, while escaping constitutionalscrutinymerely because singleregulationcoversthe entire no field. The chart appended this brief as Appendix A showsthe degreeto to (public which Mr. Gilmore's right to travel by any meansof transportation or private) is burdenedby I.D. requirements.The information in this chart was collectedby the staff of PrivacyActivism,as set out in Appendix B. As and habitation the chart shows,today many systems public transportation of of require identificationinformation and/orconductsearches personsand and policies operatein an environment their possessions. Theseregulations suspicionto stopthe person. where there is no probablecauseor reasonable
Rather,they are an inconsistent and illogical response a generalized to fear of "terrorism" and a perceivedneedto do "something"aboutit. As the chart shows,collectionof personalinformation is widespread, althoughinconsistent.The only nationalrail system,Amtrak, doeshave a policy of checkingI.D.s,but appears applythat policy sporadically. to Buses and trains in larger cities will alsonot allow a passenger purchasea ticket to without showing a valid photo I.D., whereasbusesand trains in smaller cities (sometimes from the samecompany)tend to not checkI.D. very thoroughly, if at all. Individuals who attemptto avoid this issueby driving themselves will run into difficulty with hotelsalong the way. Most nationalhotel chainsdo not have one policy for all of their hotels.Instead,securityprocedures are left up to individual managers. Information aboutI.D. requirements and searches almostalwaysleft off of the "FAQ" pageson web sites,leaving is passengers hotel guestsin the dark aboutthesepolicies.Many hotels and and that currentlydo not collect identificationinformation transportation systems reservethe right to do so at future times. or conductsearches The inescapable conclusionto be draw from the study set out in within the United States Appendix A is that the right to travel anonymously has beenseverelyburdened. For this reason,and as pleadedin the
complaint,Mr. Gilmore cannotrely on alternateforms of transportation to alleviatethe burdenof the airplaneidentificationrequirement. In dismissing Mr. Gilmore'sclaim,the District Court alsocites precedent the propositionthat feesand tariffs on interstate for travel do not place a burdenon travel sufficientto rise to the level of a constitutional violation.MonarchTravel Servs.. Inc. v. Associated CulturalClubs.Inc.. 466F.2d 552.554(.9thCir. 1972)("Of course, higherair tariffs will limit travel of thosewho cannotpay the price . . . but it is not unconstitutional.") from casesin which the Monarch Travel, however,must be distinguished right, right to travel is conditionedupon sacrificeof anotherfundamental rather than a meremonetarysacrifice. In Apthekerv. Secretary State,for of example,the SupremeCourt held that the right to travel is unconstitutionally right in burdenedif an individual is requiredto give up anotherfundamental orderto be allowedto travel.378 U.S. 500 (1964)(holdingthat it was unconstitutional preventplaintiff from traveling unlesshe gaveup his to in First Amendmentright to membership the CommunistParty). Similarly, Mr. Gilmore doesnot claim that he hashad to pay too much money to travel, but ratherthat he hasbeencompletelydeprivedof his to another fundamental right to travel unlesshe agrees surrender fundamental right - the right to privacy and anonymity.Cf. Griswoldv.
Conn..381 U.S. 479. 484-85(1965)(recognizing penumbral the rightsto privacy and repose); Mclntyre v. Ohio ElectionsComm'n.514 U.S. 334. 342 (1995)(recognizing First Amendment right to speakanonymously).The governmentasserts that Mr. Gilmore is free to board any flight - as long as he gives up his right to privacy, but "forcefing] one to choosebetweenthat necessity[of travel] and the exerciseof a constitutional right is coercionin the constitutional sense." v. United States Albarado.495 F.2d 799. 807 (2d Cir. 1974\;Seealso.UnitedStates Kroll.481 F.2d 884.886 (8th Cir. v. 1973\("Compelling the defendant choosebetweenexercisingFourth to Amendmentrights and his right to travel constitutes coercion.");United v. States Lopez.328 F. Supp.1077.1093(E.D.N.Y.1971)("Nor canthe governmentproperly arguethat it can conditionthe exerciseof the defendant's constitutionalright to travel on the voluntary relinquishmentof price to his FourthAmendment rights."). While moneymay be a reasonable pay to travel, the loss of a fundamental right is not. constitutional IV. Conclusion Amici requestthat the Ninth Circuit reversethe For the abovereasons, District Court's dismissal Mr. Gilmore'sfreedomto travel claim. of
l0
Dated:New York, New York August 19,2004 Respectful submitted, ly
By:
RachelMeeropol,Esq. CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, Floor 7'h New York, N.Y. 10012 Tel. (2r2) 614-6432 Fax(212) 614-6499 On Brief: Michael Grinthal (law student)
DeborahS. Pierce Linda Ackerman PRIVACYACTIVISM SanFrancisco. CA
ll
Certificate of Compliance Pursuantto Rule 32(a)(7)of the FederalRulesof Appellate Procedure, undersigned the counselherebycertifiesthat there are2,217 words in this brief as measured the word-processing systemusedto by prepareit.
By:
RachelMeeropol CENTER FOR CONSTITUTIONAL RIGHTS 666Broadway, Floor 7'h New York,N.Y. 10012 TeI. (2r2) 614-6432 Fax (212) 614-6499
t2
APPENDIX A: ldentificationand Search Surveyof Current Policies and Practices Concerning Requirements Public Transportationand at Major Hotels on
ID Required
Search
Data Storase
Comment
Commuter& NationalRailroads:
Amtrak photo ID State-issued requiredof all passengers yearsand 18 over to buy ticket or check baggage A recenttraveleron the CeleraExpressbetween South Station(Boston) and Penn Station (NYC) was not asked for an lD to purchasea ticket in either direction. No
.
TriRail (Miami, Ft. Lauderdale,Palm Beach) CalTrain (San FranciscoBay Area) Lons IslandRR
ID required buy to No senior handicapped or discount card. fare
No ID needed.
.
There is nothing on the web site about ID checksor searches. to It was not possible obtain information about ID requirements for the LIRR either by phoneor from the MTA web site.
InterstateBus Lines:
Greyhound (national) In largercities ID is a requiredto purchase ticket as well as to boardthe bus. In smallercities,IDs are often not required Photo ID requiredto buy ticket No No Thereis nothingon their web site about their ID policies.
.
Peter Pan (northeastern U.S.)
Unaccompanied baggage searched; accompanied baggage only if searched "looks someone suspicious."
Buyer's name and address enteredinto database
Ferries:
. CapeMay (N.J.)Lewes (Del.) Ferry Maine StateFerries
photoID State-issued required buyticket to andto boardferv.
Currently not checking ID to buy ticket or board; passenger IDs may be randomly checked while on board. RandomID checksand passenger screening may be conducted.
.
Random vehicle searches. Random vehicle searches.
Name and ID numberare recorded. No
Forcars, onlyone passenger's is ID checked.
Policy may be subject to seasonal changes; surveillancecameras are being installedon board ferries. The Authority is In the process becoming of cornpliant with the Maritime Transportation Security Act of 2002. If the threat level goes up, they may institute random searches of people.
.
Woods Hole, Martha'sVineyard and Nantucket Steamship Authority
Vehiclesmust Not known be screened to board;random baggage checks may be conducted No random searches of passengers, but there are random searches of vehicles.
SeattleFerry System
No
.
SanFrancisco Bay Area Ferrv Svstem
No In general, ID no required(buses) No IDs required ride to the feries No
N/A
No live in different timesnow." "We
.
.
PATH Port AuthorityTrans Hudson F e r r i e s -- 8 0 0 - 5 3 l FERRY
No
N/A
Subwav Svstems:
. MARTA (Atlanta) ID requiredto buy No senioror handicapped discountfare card, or to buv fare card bv check. ID requiredwith No purchase SmartCard, of to registercard against loss. No
Metro (Washington, D.C.)
Name and contact informationof SmartCard buyersis stored.
The CincinnatiPost reportedon August 7, 2004,that the Capitol (Federal)Policewere boarding Metro Transit busesand checking passenger IDs. Metro Transit could not confirm this but did say that District Police officers with sniffing dogshad beenboardingbusesin the downtown area.
ID Required
Search
Data Storase
Comments
MTA (New York)
MBTA (Boston)
No.
Yes
It was not possibleto obtain information about ID requirements for the NYC subway systemeither by phone or from the MTA web site Policy of random searches passengers' of briefcases, backpacks, etc., begun in August 2004 duringthe DemocraticNational will Convention continue. "eyes Att and ears" campaignto promote public safetyis ongoing. CurrentlyIDs are not checked, only one but personis authorized to give out any informationabouttheir policies.He hasbeen elusiveso far. Metro policerandomly check to make surethat passengers havevalid tickets. They do as the Dept. of HomelandSecurity instructs, eventhough they are not regulated by DHS. If DHS tells them to checkIDs, they will.
.
BART (San Francisco Bay Area) SEPTA (Philadelphia)
No
Only if people N/A look suspicious
e
o
Los AnselesMetro
No
Onlyif people N/A looksuspicious
o
CTA (Chicago)
No
No
Hotels:
Holiday Inn (San Francisco Civic Center) Photo ID requiredfor check-in. No IDs of walk-in customers without reservations are photocopiedand copiesare stored for I 0 years. No to Requirement show ID at check-inis not applied. consistently
.
(San Four Seasons Francisco)
No ID requiredunless checking in on same made. dav reservation
No
ID Required
Search
Data Storase
Comments
Ritz Carlton (San Francisco)
No ID requirementin general,but will check ID if reservation in a is different name;ID requiredfor walk-in without reservation.
No
ID copiedand storedfor four yearsfor walk-in without reservation. No ID policy is not generallyenforced "we don't want because to irritate people."
(San BestWestern Francisco Civic Center)
Policyis to askfor ID butthisis done onlyif "looks someone if suspicious"; will suspicious check ID andcreditcard.
No
Ceasar's Palace (Las Vegas)
.
Hyatt
ID required. The customerrepresentative statedthat they only do visual inspections of ID. Someone who recentlystayedthere said that the person behindthe counter wantedto photocopy his ID and was told that it is companypolicy to do so. When he balked, the hotel backeddown. No Yes. They want an ID card and a credit card. No ID. no checkin. ID cardonly. They don't needa credit card. No
Thereis nothingon the web site about ID checksor searches.
.
Motel6
.
Days Inn
ID card and credit card No are needed. Ifthe guest doesnot havea credit card, the hotel takesa photocopyof their ID.
They do not makecopiesof any ID documents. The only time they photocopy IDs is if someone wantsto make a credit card paymentover the phone. If that is the case,they keepthe photocopy ofthe ID alongwith a copy of the credit carddocuments (indefinitelv). Storeuntil guest The customerservice didn't representative leaves. know what would happenin the caseof guestwho doesnot wish to havetheir ID documentscopied.
ID Required
Search
Data Storase
Comments
.
Marriot Hotel/Residence Inn
Somehotelsphotocopy the ID. Customer servicerepresentative was evasivewhen askedaboutoptionsif a guestfails to show ID. ID checksare all local, so it is up to the individualbehindthe deskto decidewhether or not to checkthe ID
No
Declinedto state
Nothing is on the web or site about searches ID checks. The stated reason that policies is are all local. A random check of specifichotel web sitesfailed to turn up any informationon lD checks searches. or
APPENDIX B Affi davit of PrivacyActivism PrivacyActivismis a 501(c)(3)non-profitcorporation basedin San Francisco,California. Linda Ackermanand DeborahPierceare staff counseland executivedirectorrespectively PrivacyActivism. of PrivacyActivism can be found on the web at www.privacyactivism.org. During the weeksof July 12 throughAugust 6,Linda Ackerman and I contacteda variety of public transportation systems and hotelsfor the purposeof determininghow possibleit is to travel anonymously throughout the United States.We collectedthis informationnot as individuals.but as part of our work at PrivacyActivism. We contacted interstate bus lines bus lines suchas Greyhound;commuter railroadssuchas TriRail in Florida; railway systems like AMTRAK; subway systemslike the DC Metro, SanFranciscoBART, MBTA in Boston; ferries suchas the Seattleferries;and finally, a variety of hotels.We contactedall of the above(for a completelist, seethe appendixin the xxxxx brief) by phone as well as checkingthe informationthat was listed on the web sitesof eachof the entities. For some,we were unableto collect the information for a variety of reasons. We found that the trend is to collect information,and for thosethat aren't collecting identifying informationcurrently,keepingoptionsopen for the
future.
Signed, DeborahS. Pierce ExecutiveDirector PrivacyActivism SanFrancisco August 11,2004