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Bespectacled, bearded, and Birkenstocked (with Dr. Seuss socks), John Gilmore cut an appropriately iconoclastic figure amid a scrum of reporters in front of the U.S. Court of Appeals for the Ninth Circuit on December 8. Gilmore, a tech-boom multimillionaire, is a major funder of the electronic privacy movement. He’s also been at the center of an increasingly strange piece of litigation for the past three years since he sued the government, claiming that the requirement to show identification before boarding a plane is unconstitutional. Complicating matters � and nourishing conspiracy theories � is the government’s ongoing refusal to disclose what, if any, requirement is on the books. Gilmore’s case was dismissed in 2004 by the Northern District of California, on the grounds that Gilmore lacked standing (his right to transportation could be exercised in ways other than flying) and that complaints about airport restrictions should go directly to the Ninth Circuit. In December, Gilmore’s lawyer, James Harrison, argued to have the suit reinstated in front of three Ninth Circuit judges � keenly aware that the litigant was suing to make a point. “What better reason is there?” Harrison said after his spirited oral argument. “Just because he made a fortune doesn’t mean he shouldn’t stand up for other persons’ and his rights. Just because he can buy an airplane doesn’t mean he has to.” The Ninth Circuit panel of Richard Paez, Thomas Nelson, and Stephen Trott was certainly skeptical of Gilmore’s claim that asking for ID was an illegal search. Trott was especially doubtful that asking for identification constituted a search at all. But all three judges also seemed troubled by Justice Department appellate attorney Joshua Waldman’s argument that the government does not have to publicly disclose what kind of ID law it does or doesn’t have on the books, since the requirement is a confidential “law enforcement technique” and involves “sensitive security information.” Prior to oral arguments, the court denied a motion by the U.S. Department of Justice to submit applicable documents under seal, so the judges � but not Gilmore or his counsel � could see the ID requirement, sparking what Nelson referred to as “a brouhaha.” In the end, Harrison asked the judges to remand the case to the trial court, where a record could be established for the Ninth Circuit to review. Waldman, on the other hand, asked for a complete dismissal � or for the Ninth Circuit to address it directly. For his part, Gilmore � surrounded by reporters, lawyers, and the PR specialist he pays to build publicity for the case, and wearing a button that says “suspected terrorist” � said after the arguments that he has problems with all ID checks, including, apparently, the one at the door of most federal buildings. “My lawyer signed me in,” Gilmore said. A version of this story originally appeared in The Recorder, a sibling publication of Corporate Counsel.

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