UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No.04-l5736
JOHN GILMORE,
Plaintiff-Appellant,
v.
JOHN ASHCROFT, et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case No. CV -02-03444-S1
Honorable Susan Y. Illstont United States District Court Judge
BRIEF OF AMICUS CURIAE ELECTRONIC
FRONllER FOUNDAllON IN SUPPORT OF
PLAINTIFF-APPELLANT JOHN GILMORE
Lee Tien
Kurt Opsahl
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333
(415) 436-9993 (fax)
Attorneys for Amicus Curiae
Electronic Frontier Foundation
TABLE OF CONTENTS
STATEMENT
OF
AMICUS
CURIAE
I
II. SUMMARY OF ARGUMENT
FACTUAL AND LEGAL BACKGROUND
2
ill.
ARGUMENT
6
IV.
A. Demands for identity credentials pursuant to federal airport
search programs for domestic flights violate the Fourth
Amendment.
6
The district court erred in analyzing the demand for
identity credentials as a mere request for identification.
7
2. The district court erred in analyzing the demand for
identity credentials independently of the federal airport
search
program.
10
B. Airport searches pursuant o the federal airport search
program are limited to searches
for weapons and explosives
and do not encompass demands for official identity
credentials.
12
By its own terms, Davis only authorizes administrative
searches
for
weapons
and
explosives.
13
c. Demands for official identity credentials cannot otherwise be
justified as administrative searches, especially in light of the
danger that the airport search program will be infected by
ordinary law enforcement goals
14
D. Demands for identity credentials pursuant to federal air
traveler screening programs are not reasonable under Brown
v. Texas
17
The government has not shown that demanding official
identity credentials
is an effective means of furthering the
administrative
interest
in
aviation
safety
18
2. The government has not shown the existence of an
"explicit, neutral" plan for ill demands.
20
E. Demands for iden