He's unable to travel because he refuses to present a government-approved ID
Sunday, February 27, 2005
By Dennis Roddy, Pittsburgh Post-Gazette
SAN FRANCISCO -- John Gilmore's splendid isolation began July 4, 2002, when, with defiance aforethought, he strolled to the Southwest Airlines counter at Oakland Airport and presented his ticket.
The gate agent asked for his ID.
Gilmore asked her why.
It is the law, she said.
Gilmore asked to see the law.
Nobody could produce a copy. To date, nobody has. The regulation that mandates ID at airports is "Sensitive Security Information." The law, as it turns out, is unavailable for inspection.
What started out as a weekend trip to Washington became a crawl through the courts in search of an answer to Gilmore's question: Why?
In post 9/11 America, asking "Why?" when someone from an airline asks for identification can start some interesting arguments. Gilmore, who learned to argue on the debate team in his hometown of Bradford, McKean County, has started an argument that, should it reach its intended target, the U.S. Supreme Court, would turn the rules of national security on end, reach deep into the tug-of-war between private rights and public safety, and play havoc with the Department of Homeland Security.
At the heart of Gilmore's stubbornness is the worry about the thin line between safety and tyranny.
"Are they just basically saying we just can't travel without identity papers? If that's true, then I'd rather see us go through a real debate that says we want to introduce required identity papers in our society rather than trying to legislate it through the back door through regulations that say there's not any other way to get around," Gilmore said. "Basically what they want is a show of obedience."
As happens to the disobedient, Gilmore is grounded. He is rich -- he estimates his net worth at $30 million -- and cannot fly inside the United States. Nor can he ride Amtrak, rent a room at most major hotels, or easily clear security in the courthouses where his case, Gilmore v. Ashcroft, is to be heard. In a time when more and more people and places demand some form of government-issued identification, John Gilmore offers only his 49-year-old face: a study in stringy hair, high forehead, wire-rimmed glasses, Ho Chi Minh beard and the contrariness for which the dot.com culture is renowned.
"I think of myself as being under regional arrest," he said. Even with $30 million in the bank, regional arrest can be hard. He takes the bus to and from events at which he is applauded by less well-heeled computer techies who flew in from around the country after showing a boarding pass and one form of government-issued photo ID and arrived in rental cars that required a valid driver's license and one major credit card.
He was employee No. 5 at Sun Microsystems, which made Unix, the free software of the Web, the world standard. He japed the government by cracking its premier security code. He campaigned to keep the software that runs the Internet free of charge. After he left Sun, Gilmore started his own firm, sold it for more money than he seems to have bothered to count and has since devoted his time to giving it away to favored causes: drug law reform, a campaign to standardize computer voting machines and the Electronic Frontier Foundation, something of an ACLU for the Information Age.
To some, Gilmore's argument is redolent of the conspiracy theories from the black helicopter crowd.
"That's the problem. How it sounds," Gilmore said. He waved his hands like some Cassandra: "They have all these secret laws! The UFOs are coming! They have guards at every airport!" Yes, he said, there is a certain odd flavor to the notion that someone shouldn't have to show ID to board a plane, but with magnetometers at the gates, guards with security wands, fortified cockpit doors and sky marshals abounding, Gilmore is asking just how much citizens are giving up when they hand their driver's licenses to a third party, in this case an airline, where it is put into a database they cannot see, to meet a law that, as it turns out, they are not allowed to read.
Gilmore will show ID for an international flight because he doesn't expect to set the rules for other nations.
"I will show a passport to travel internationally. I'm not willing to show a passport to travel in my own country," Gilmore said. "I used to laugh at countries that had internal passports. And it's happened here and people don't even seem to know about it."
From geek to riches
The passage of John Gilmore from a bespectacled proto-nerd from Bradford, Pa., to the twice-wealthy privacy-rights pioneer of the dot.com West Coast started in his father's living room, where he first suspected authority is used simply because someone has it.
When something was found broken or spilled or some other evidence of a fractured rule surfaced, and the guilty party unknown, the elder Gilmore would summon his four children to the living room.
"He'd line us all up in the living room. Until one of us confessed, we wouldn't get to leave. Eventually one of my younger brothers started confessing to things he didn't do just so we could get out of there," Gilmore said.
Gilmore's father was a mechanical engineer. John was born in York and the family moved to Bradford, near the state's northern border with New York, when he was small. Today, at his home in Haight-Ashbury, a place he named Toad Hall, after the character from "The Wind in the Willows," Gilmore keeps a small school photo. It shows him with a little-boy crew cut and thick, half-rim eyeglasses, the kind that have been in and out of fashion twice since the photo was taken in the mid-1960s.
The young Gilmore was a strong student at the schools in Bradford. He took to math. In high school, he became curious about computers. The 1960s were an era in which computers enjoyed an almost mystical reputation; imputed by popular culture with the power to deduce anything. One year, a team of scientists entered data for the 1927 New York Yankees and the 1963 Los Angeles Dodgers to see who would win -- an early "computer match." Babe Ruth was even credited with a home run.
It was easy for a bright boy to become curious about how something so all-knowing worked.
"When he was 12, for his birthday, he asked for an IBM manual," said his mother, Pat Woodruff, who remarried after she and Gilmore's father divorced 20 years ago and returned to live in Bradford. "His floor used to be littered with papers. I had no idea what he was doing."
The University of Pittsburgh opened a branch campus in a building across the street from his high school. In it, they placed a desk-sized IBM 360. Gilmore started wandering over to learn FORTRAN, the punch-card programming language that made the computer do complex mathematical calculations.
The Pitt-Bradford library had a few computer books, and one of his high school teachers got John a card.
The family was about to move to Alabama when John began writing to the company that printed up a $3 manual for computer use. The firm, Scientific Time Sharing Corp., in Bethesda, Md., rented out computer time to companies such as Arbitron and ABC News, which needed storage for vast databases.
After the third or fourth correspondence, they wrote back to ask if he was a customer. Gilmore wrote back that he was a high school student and he was moving to Alabama.
After completing high school in Alabama, Gilmore had two summer internships behind him and a full-time job as the youngest geek in Bethesda.
He had a few dollars in his pocket and a letter of acceptance from Michigan State University. He used the money. The letter was of little use. Computer science had not yet come into its own as an academic discipline.
"Why pay someone to teach me computers when I can get someone to pay me to learn them?" he reasoned.
When techies burn out, they tend not to do strange things. They are, by nature, already a few degrees off plumb. So they revert to the ordinary. Gilmore burned out in the late '70s. He got on a motorcycle and rode west.
"He just packed up his stuff and moved off," Pat Woodruff said. "I don't know where he went at this time."
He went to New Mexico. Gilmore worked for a while in the lowest of mechanical technologies: a traveling carnival. He ran the Tilt-A-Whirl.
"You have to watch the thing closely and know when someone's going to lose it, so you move back," he said.
Dodging stomach contents kept him employed for a while. At one point he moved in with New Mexico's most dysfunctional couple. The male in the relationship found out the female was pregnant. An argument broke out. A gun was produced. Gilmore forgot his lesson from the Tilt-A-Whirl. He didn't duck. A bullet caught him in the hand. He finished his New Mexico stay sleeping under a stairwell at the local college.
He knocked around the country a bit more. Staying with a relative in Jacksonville, Fla., Gilmore looked for a job at a local bank. "They said they wouldn't hire me as a teller, but they'd be glad to hire me to run their computer," he said.
Eventually, Gilmore moved to San Francisco and took up computer consulting. One day, a friend called. He'd gone to work for a startup firm called Microsoft. The company's founder, a Harvard dropout named Bill Gates, was selling Unix, a universal software on which the Internet would be based, and he wanted Gilmore to find a way to make Unix work on the computers of a prospective customer based at Stanford University. After a job interview, Gilmore called the people at Stanford. They were starting a company to be called Sun, short for Stanford University Network, and would Gilmore like to be their first software employee.
"I hired on at Sun because the work was interesting," he said. The pay was just short of marginal.
Thus did John Gilmore get rich by accident. Because he was on the ground floor, his stock was worth more. Sun went public in 1986 and suddenly John Gilmore was rich. He stayed on at Sun as a consultant until 1989, then started his own company, Cygnus. A few years later, when he sold Cygnus, he was, in the parlance of Silicon Valley, "loaded." That is to say he is not ridiculously rich -- just wealthy enough to make trouble.
Gilmore, for instance, is blocked from most e-mail servers because he runs what the industry calls an "open relay" on his computer server, tucked into the basement of his house. People are able to send e-mail through it without identifying themselves, raising the ire of the anti-spam movement.
His server sits next to the remnants of what is known in the industry as the "DES Cracker." It is a collection of computer chips, connected by a spider web of circuitry that he built to overpower the most widely used encryption system -- the same one used on ATMs and satellite dishes.
"The government was recommending everybody use it. We did that to show it wasn't worth relying on," Gilmore said. His own theory was that a privacy program offered by the government isn't, by nature, likely to remain private.
By 1996, Gilmore's dislike of authority was in full bloom. At San Francisco Airport, he refused to produce a driver's license for security police.
"The cop said, 'You want me to arrest you?' I said, 'I'd consider it an honor.' " They honored him with an arrest. The district attorney dropped the case.
Gilmore has epilepsy, and because of that his driver's license was suspended five years ago. He decided not to reapply because it is now easier, when asked for a photo ID, to be able to say forthrightly that he has none.
More than $1 million of his money has gone to house and feed the Electronic Frontier Foundation. On a given day, visitors can find a team of lawyers meeting with young men and women, still pale from too much time indoors, seeking counsel to protect them from the wrath of everyone from the Recording Industry Association of America, which is trying to shut down music file sharers, to federal regulators worried about the latest software for encrypting e-mail communications.
"He cares a great deal about privacy," said Lee Tien, a full-time litigator at EEF. Because privacy is one of those things that disappears without always being noticed right away, Tien and other EFF lawyers find themselves fighting regulations nobody gets excited about right away.
"Privacy discourse ends up being at one end, 'What have you got to hide?' vs. 'Mind your own business,' " Tien said.
"If John Gilmore were a country," adds his personal publicist, Bill Scannell, "his motto would be 'Let Me Alone.' "
Rosa Parks did not ride that bus in Montgomery by accident. Several strategy meetings preceded the famous ride in which the founding mother of the civil rights movement boarded a bus and declined to sit in the back.
Gilmore's famous visit to two airline ticket counters in the Bay Area was charted out. He checked in with his lawyer. He kept notes. He booked a flight from Oakland, with its slightly cheaper fares, to Washington, D.C., where he planned to drop in on the offices of his member of congress, U.S. Rep. Nancy Pelosi, D-San Francisco, to convey his growing concern about the amount of data the government is gathering from and about its citizens.
His reason for travel, he would later say, was "to petition the government for redress." That added First Amendment issues to a Constitutional exercise that would also turn on the amendments against unreasonable search and seizure and the right to assemble and petition the government for redress of grievances.
Everything went pretty much according to expectations. That is to say, everything went to hell in a hurry.
As Gilmore tells it, he arrived at the gate two hours early, a paper ticket purchased through a travel agent in his hand. A Southwest agent asked for his ID. Gilmore, in turn, asked her if the ID requirement was an airline rule or a government rule. She didn't seem to know. Gilmore argued that if nobody could show him the law, he wasn't showing them an ID.
They reached a strange agreement for an argument about personal privacy: In lieu of showing ID, Gilmore would consent to an extra-close search, putting up with a pat-down in order to keep his personal identity to himself. He was wanded, patted down and sent along.
As Gilmore headed up the boarding ramp a security guard yanked him from line. According to court papers, a security agent named Reggie Wauls informed Gilmore he would not be flying that day.
"He said, 'I didn't let you fly because you said you had an ID and wouldn't show it,' " Gilmore said. "I asked, 'Does that mean if I'd left it at home I'd be on the plane?' He said, 'I didn't say that.' "
The Gilmore case is, if anything, about things unsaid. Gilmore -- and millions of other people -- are daily instructed to produce some manner of ID: a driver's license, a Social Security number, a phone number, date of birth. When Gilmore asked to see the rules explaining why his photo ID is necessary for airline security, his request was denied. The regulation under which the Transportation Safety Administration, an arm of the Department of Homeland Security, instructs the airlines to collect such identification is classified as "Sensitive Security Information."
When Congress passes a law, it is as often as not up to some agency to decide what that law means and how to enforce it. Usually, those regulations are available for people to examine, even challenge if they conflict with the Constitution.
This wasn't the case when Congress passed the Air Transportation Security Act of 1974. The Department of Transportation was instructed to hold close information that would "constitute an unwarranted invasion of personal privacy" or "reveal trade secrets" or "be detrimental to the safety of persons traveling in air transportation."
The Federal Aviation Administration, then a branch of the transportation department, drew up regulations that established the category now known as Sensitive Security Information.
When the responsibility for air travel safety was transferred to the newly created Transportation Safety Administration, which was in turn made a branch of the new Department of Homeland Security, the oversight for Sensitive Security Information went with it. The language in the Homeland Security Act was broadened, subtly but unmistakably, where SSI was concerned.
It could not be divulged if it would "be detrimental to the security of transportation."
"By removing any reference to persons or passengers, Congress has significantly broadened the scope of SSI authority," wrote Todd B. Tatelman, an attorney for the Congressional Research Office. Tatelman was asked by Congress last year to look at the implications of Gilmore's case.
Tatelman's report found that the broadened language essentially put a cocoon of secrecy around 16 categories of information, such as security programs, security directives, security measures, security screening information "and a general category consisting of 'other information.' "
The government has been so unyielding on disclosure that men with the name David Nelson suddenly found themselves ejected from flights. Somewhere in the system, the name came up on the newly created "No Fly" list. Sen. Edward M. Kennedy, D-Mass., found himself in the same dilemma. When baggage screeners were caught pilfering, prosecutions were dropped because a trial would require a discussion of "Sensitive Security Information."
When John Gilmore demanded proof that the airport ID rule met Constitutional muster, the government at first declined to acknowledge it even existed.
Ann Davis, a spokeswoman for TSA, tacitly acknowledged the strange rabbit hole into which Gilmore has fallen. The Department of Justice, in its first response to Gilmore's suit two years ago, declined to acknowledge whether such an instruction existed. Later, it admitted its existence. Then the government asked a judge to hold a hearing in secret and preclude Gilmore's lawyers from seeing the regulation they sought to challenge, the contents of which seem to be pretty widely known.
"It's a rubber stamp. TSA security directives are -- plural -- sensitive security information and not subject to public disclosure," Davis said.
How, then, is someone to challenge in court a law he's not allowed to see?
"I have no idea," Davis said. "If a passenger doesn't wish to show ID prior to getting a boarding pass, that's something they're going to have to take up with the air carrier. And the air carrier is required to obtain government-issued identification."
That, says Gilmore's lawyer, Jim Harrison, is the enigma of the case: "It's about the ability of the citizens of this country to be able to move about the country, to move about freely, without being subject to laws they can't see."
The legal cul-de-sac erected around airport security is not limited to Gimore's deliberately chosen fight. In October 2001, at San Francisco Airport, Arshad Chowdhury, born and raised in the United States, was surrounded by security agents and kept off a Northwest Airlines flight. He was trying to get back to Carnegie Mellon University, where he was a graduate student.
Chowdhury's last name sounded somewhat like another name on the no-fly list. He could never get an explanation. He filed suit against Northwest, but, to date, his court fight has been with the government, which has pleaded Sensitive Security Information.
To sue Northwest for racial profiling, Chowdhury must first sue his own government for the rules Northwest will plead it was enforcing.
Code Con is one of those technological events so deep that ordinary conversation requires an English-to-English translator. A young woman was onstage explaining a system she had developed to, as it turns out, automate trust in discussion groups by assigning a ranking of credibility to participants based on past messages and reactions. Discussion boards must either be moderated, to keep the wackos from disrupting them, or wide open, in which case postings can take unreasonably long times.
As she spoke, half the audience inside a darkened nightclub rented for the event stared into the blue glow of laptop computers. Some were following the PowerPoint presentation on a Web site set up for the affair.
Dan Klein, a Pittsburgh computer consultant, was in the back of the room. He has known Gilmore for years, and to know Gilmore is to know the room. Computer programmers, the really good ones, combine an artistic temperament with a conviction that intuitive reasoning can lead to mathematical certainty.
"It's elegant thinking," Klein said. "We are most of us white hats, but we think like black hats."
The elegance of Gilmore's thinking is that knowing someone's ID does not prevent the person from committing a terrorist act. The 9/11 hijackers had driver's licenses. Knowing someone's identity, as Gilmore argues it, adds less to a security than it takes away from a traveler's protection from authority that might oppress simply because it can.
"It's just rebellion against oppression," Klein said. "Part of it is this sense of 'Why do I have to follow all these rules when they don't make any sense?' "
The young woman finished her speech, took a few questions and, just as everyone was about to rise for lunch, Scannell, a peripatetic man who orbits around both the techies and the world of PR, was on the stage. He had a special request. He had just become a parent and wanted to put in a wireless baby monitor. Could someone come up with a way to encrypt a baby monitor so outsiders couldn't pick up the signal?
By day's end a few people had approached with ideas. It is doubtful anyone would bother to listen in on a baby gurgling, but this was the principle of the thing: meeting the people who know the math to make it work.
Soon afterward, 14 Code Con attendees flooded into a nearby Italian restaurant. Gilmore sat at one end of the table, chatted privacy, travel and whether the drug called Ecstasy has a medicinal application. Then, to save time, he picked up everyone's check. In cash. No credit cards. Why leave a paper trail?
That night, he caught a ride home with a friend. The night before was more to his liking. On a bus running through San Francisco to Haight-Ashbury, a multimillionaire sat alone in a seat next to a woman who appeared to be homeless. Neither knew who the other one was. All John Gilmore had to show to get on board was a $1.25 fare. That's how he likes it.