Wed,  4 Sep 1996 at 12h05

    In a conversation at Crypto, arising out of the fact that John
Gilmore arrived late due to being arrested for refusing to turn on his
laptop, Eric Blossom reported that he had a letter from the FAA to
Rober Ellis Smith saying that an airline was required to ask a
passenger for ID, but the passenger was not required to produce it.
When I received a copy of the letter (attached below) from Eric, it
seemed much less comforting that I had hoped and suggests that the
airlines have discretion to refuse passage even if the FAA doesn't
require it.

    (Eric says he has gotten away with refusing and that the airlines'
status as common carriers requires them to carry anyone who pays.  I
don't understand this very well and would appreciate clarification from
anyone who does, but that is not the point of this note.)

    The really frightening aspect of the letter is in the fourth
paragraph, which says: ``Title 49 U.S.C. Section 40119(b) states in
part that the FAA Administrator may prescribe regulations as he
considers necessary to prohibit disclosure of any information . . .''
This seems to be very close to `secret law' in the sense in which the
term is applied to totalitarian societies.  It is bad enough to have
NSA created and governed under secret regulations.  Those, regulations
only affect NSA's employees, contractors, etc.  directly.  Their
ill-effect on the rest of us is by and large limited to allowing NSA
to do things that undermine democracy free of public oversight.  To
have secret regulations that directly affect the conduct of daily life
is far worse, particularly in a case like air transport, where you
have no viable alternative and appeal to the courts cannot offer
relief to the immediate problem.

    A FOIA request for these regulations may have more effect than a
simple request.  If you have not made such a request, I strongly urge
you to do so.
					Whit


U.S. Department           Associate Administrator         800 Independence Ave., SW.
of Transportation         for Civil Aviation Security     Washington, DC 20591

Federal Aviation
Administration

 MAR 13 1996

Mr. Robert Ellis Smith
Publisher, Privacy Journal
P.O. Box 28577
Providence, RI 02908

Dear Mr. Smith:

Thank you for your February 16 letter concerning the requirements to request a
valid form of identification from commercial airline ticket holders.

The Federal Aviation Administration (FAA) issued a Security Directive to be put
into effect at airports throughout the country in response to recent intelligence
indicating an elevated domestic threat situation. It is a countermeasure listed
within this security directive that mandated that airlines request a valid form of
identification from airline ticket holders. While an airline is required to request
identification, the actual presentation of identification by the passenger is not
absolutely required, and there is currently no prohibition against allowing
someone on an aircraft without such identification. However, the absence of
identification may result in the use of alternative measures that provide the same
level of security protection.

Security countermeasures issued by the FAA in a Security Directive establish
security minimums for adoption by airlines and airports. Airlines and airports
may exceed those minimum standards by implementing more stringent security
requirements. Where airlines implement additional or more stringent measures,
passengers my sometimes experience differences in procedures as they
undergo processing. Refusal to allow a passenger without a photo identification
to board the aircraft is an example of such differences, and is the policy of an
individual airline; this is not an FAA security requirement.

With regard to your request for excerpted language from the Security
Directive, it has been determined that the disclosure of information from this
document would undermine the effectiveness of the measure. Title 49 U.S.C.
Section 40119(b) states in part that the FAA Administrator may prescribe
regulations as he considers necessary to prohibit disclosure of any information
obtained or developed in the conduct of security or research and development
activities if he concludes that disclosure would be detrimental to the safety of
persons traveling in air transportation. Accordingly, the information you
requested cannot be released.

As always, the highest priority of the FAA is the safety and security of the
traveling public. Thank you for expressing your concerns.


Sincerely,

??????
for Cathal L. Flynn
Associate Administrator for
  Civil Aviation Security