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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.
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| John
Gilmore, beside a graffiti-covered wall, has his morning
coffee at a shop that's one block from his San Francisco
home. The Bradford native doesn't drive and has other
travel restrictions, thanks to his challenge of a
law that the government won't allow him to see. Photo
by: Dennis Roddy, Post-Gazette |
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."
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| There's
no place like home for John Gilmore, who can't travel
very far from his San Francisco residence. The Bradford
native refuses to give his identification for flying.
Photo
by: Dennis Roddy, Post-Gazette |
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.
Road trip
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.
He did.
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.' "
Conscious objection
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.
High-tech togetherness
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.
[Tony's Note: I applaud
him for testing the legal system in the way he is doing
it. I consider him a patriot, whether he knows that he
is or not. Whatever happened to Freedom to Travel?]
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