If you haven't read it, please start by reading John Perry Barlow's account of the history of People v. John Perry Barlow, because I don't want to tell the whole story that gave rise to that case here. You would do much better to start off with Barlow's own account, not least because of its account of how John Gilmore bailed him out of jail. (You might also want to see Barlow's collection of legal documents, some of which are alluded to below.)
On Wednesday I went to Superior Court for the hearing on John Perry's motion to suppress. The defense claimed that the search at the airport in 2003 was not "reasonable" and therefore that evidence obtained from it should not be admitted. The Superior Court of California, County of San Mateo, is accustomed to dealing with cases that arose at the San Francisco Airport, but it's not particularly used to constitutional challenges to aviation screening procedures, nor to having multiple camera crews turn out for a single pre-trial evidentiary hearing in a misdemeanor drug possession case.
This hearing marks the moment that I have managed to attend proceedings in all three levels of both the Federal and California judicial systems (among various others, Eldred v. Ashcroft in the U.S. Supreme Court, MGM v. Grokster in the Ninth Circuit Court of Appeals, Online Policy Group v. Diebold in the Northern District of California, DVD CCA v. Bunner on the Supreme Court of California and in the California Court of Appeal, and now People v. Barlow in the Superior Court of California). Some time I may have to prepare a more complete chart of what courts I've visited.
In the Superior Court, at least at the pre-trial stage, there is a rotation of judges with the result that multiple judges may hear and rule on various aspects of the case at successive hearings. The judge who was assigned to People v. Barlow on Wednesday had never heard of the case before noon that day; he came around in the rotation and therefore he was responsible for that particular hearing a mere two hours after he first laid eyes on the case file.
The hearing started off with a discussion of what the hearing would be about. The judge wanted to know if the parties were prepared to argue about the substance of the actual motion to suppress (whether the airport search was illegal or not), or whether they were still waiting for other threshold issues. At this stage, we heard a lot of discussion about the presence of an attorney for the Federal government, who was there to try to make sure that nobody said anything in court about how aviation security procedures actually work. (Much more on this below.) The Federal government had actually previously tried to intervene in the case to persuade the judge not to allow evidence about screening procedures to be obtained by Barlow's attorney -- much less introduced. The judge briefly discussed this question (he had only seen a brief notation about it in the file, and hadn't actually heard arguments about it) and said that he was prepared to hear the substantive argument, and to allow the Federal government lawyer to speak up if she thought there was a problem. This turned out to be a problem for Barlow, in my opinion, but the parties agreed to go ahead under these conditions.
Long before the hearing, Barlow's attorney had sent various subpoenas to everyone involved with Barlow's arrest -- including the screener who searched his bag and the police officer who arrested him, and their employers. Both of those people would end up being called as witnesses on Wednesday, but the court was told that they had generally all refused to respond to most of the subpoenas on the grounds that information about how screening in airport works is secret property of the Federal government. They therefore said that Barlow had to ask the Federal government if he wanted to know any of that information. In principle, Barlow's attorney could have fought this; it's hard to say that this judge would have been enthusiastic about ordering that information turned over, but the refusal definitely turned out to have been a sign of things to come.
At the hearing, and in its previous attempt to get the court to forbid Barlow's attorney from obtaining various kinds of evidence, the government made an immense number of references to something called sensitive security information, or SSI. (No relation to server-side includes or supplemental security income.) The SSI system is a modern legal oddity which exists in some sense parallel to, but apart from, the system of classified information. SSI is not (necessarily) classified, but it is, in the government's view, subject to restrictions that I think are in many ways more restrictive than the restrictions on classified information. Google suggests Congressional Research Service article on SSI as a good source of legal information here. Briefly, the Federal agencies involved with regulating transportation argue that they are entitled by statute and regulation to designate an enormous number of facts in any way related to transportation security as "sensitive security information" and then to prevent anybody within the system from disclosing it under the Freedom of Information Act, or even, remarkably, in response to a subpoena.
In the course of Barlow's hearing, we certainly learned that the government is still sticking to this view: in principle, nobody who works in aviation security is really supposed to say anything much at all about it, even under subpoena.
Another case, Gilmore v. Ashcroft, has gotten into this particular thicket much deeper than People v. Barlow. Typically, people get to challenge government actions on various grounds (for example, that they are arbitrary or that they violate some constitutional right). However, if the policies implementing some government action are designated as "sensitive security information", it can be amazingly difficult to get into court challenging them. One practical result of this is an immense expansion of the government's power, since it's actually relatively common for courts to overturn actions of the executive branch -- when they know what those actions are! See also EPIC's brief about this.
So the People first called the screener (Sandra Ramos) who actually performed the search of Barlow's bag, and she described what she had done. On cross-examination, Barlow's attorney started to ask her a large number of questions about her training and the procedures she followed. The judge wouldn't allow a single one of these questions. They were all shot down in a flurry of relevance objections by the People and privilege objections by the United States. (In my recollection, the judge did not actually grant a single one of the dozens of privilege objections raised by the United States, but he would always either grant the accompanying relevance objection or else make his own sua sponte relevance objection and then grant it. Thus, in my recollection, he completely avoided ruling on whether a privilege against disclosure of this information actually existed, which irritated me a lot because I was eager to see a court rule that the Federal government cannot actually prevent people from introducing evidence about what baggage screeners do in cases about whether what they do is constitutional. As I understood the judge's rulings, I had no such luck all day. Other people believe that the judge did grant several privilege objections, indicating he believed that the Federal government had a legal basis for keeping this evidence out of court, so perhaps we will check the transcript.)
But here's the thing. The Federal government lawyer sat right behind the People's lawyer and objected every single time that the defense asked anything about screeners' training or procedures, or about statistics, history, trends, equipment, techniques, or anything substantive about the roles of different law enforcement agencies. And the judge essentially always granted the objections on "relevance" even when they were made on "privilege". For example, the defense asked things like whether x-ray machines beep and whether they have two-dimensional displays, and the United States objected. The United States does not want you to know whether x-ray machines beep, or whether they have two-dimensional displays.
Intermittently, I found this hilarious, because much of the alleged "SSI" could be discovered immediately by a passenger or a journalist. (I am still working on a piece that will describe vulnerabilities in vastly more detail than almost all of the information the United States objected to at the People v. Barlow hearing. I intend to describe not only the security procedures used by specific airports and airlines, but a good deal of detail about how they can be circumvented, in the hope of showing that many of these measures cause privacy harm for no benefit. All of those descriptions derive solely from my experiences as a passenger on a single recent commercial aviation trip. That does not prove that the government is legally wrong to say that people within the system are forbidden to talk about equivalent things, but it suggests that there's not much true security benefit at stake in forbidding them.) The security culture is reflexive, or, one might say, knee-jerk -- the Feds are totally dedicated to idea that it is never appropriate to permit anyone within the system to disclose SSI to the public. It would be bad for national security, the theory goes, if screeners could tell people whether x-ray machines beep. Never mind that Federal law enforcement agencies themselves publish detailed information about how to conceal weapons to carry them aboard aircraft, what various kinds of concealed weapons look like under x-ray, which ones appear more suspicious than others, and where you can buy them!
Many of the knives in this collection were commercially purchased and typically can be bought for less than $20. Some of these knives are common items found in most homes and offices. You will notice also that some are made of a plastic material, making them less likely to be considered a weapon.
The secrecy culture cultivated by TSA demands an extensive deference which (as Barlow's attorney pointed out) is often supposedly justified by saying "September 11, September 11, September 11". But in fact many aspects of aviation security practice are still stupid and pointless, or, to be more polite and precise, they are security theater. It would be easy to digress on this, and on secrecy culture in general, but I will simply mention again John Gilmore's observation that secrecy here regularly denied the public the opportunity to challenge actions of the executive branch (and private contractors!) in court.
One obvious example might be racial profiling; if TSA believed racial profiling worked and told airport screeners to use it, TSA's position appears to be that, not only would it not have to tell you if you asked it (under FOIA or whatever), but it would not have to respond to a subpoena in actual litigation, nor would it have to provide statistics, training manuals, etc., that might help make the case, nor could screeners testify about whether or not they personally had engaged in racial profiling. Of course, this issue didn't come up at Barlow's hearing, but I can't see any basis for distinguishing it. By contrast, when ordinary police are accused of all sorts of malfeasance (not just racial profiling), an enormous amount of evidence can be developed. And much of it becomes public.
Ms. Ramos, the screener, seemed deeply irritated by Barlow's case. She referred at one point to having received lots of subpoenas; she appeared upset that people were spending so much time criticizing her and challenging her when she had just done her job. Subjectively, I felt that she was saying something like "isn't Barlow the bad guy for carrying drugs on an airplane, not me for finding them like I was paid to do?". And there was a real sense in which she was on trial: Barlow was contending that she had acted illegally and that she had not been doing her job, or that, if what she had done was actually her job, then her job was illegal. Almost the entire day in court was dedicated to Barlow's efforts to demonstrate this, and, understandably, Ms. Ramos didn't like it one bit.
I think there were also some very remarkable class issues in play, which I will hope to understand better in the future.
After hours of questioning of the People's witnesses (Ms. Ramos and the police officer who actually arrested Barlow), the People rested and the defense got an opportunity to call some witnesses. It ended up calling three. The first was another airport police officer, whose testimony was meant to show that screeners were somehow hoping or being encouraged to look for drugs (contrary to Federal precedent which demanded that they look only for weapons and explosives), but it didn't seem to have that effect. The second witness was a surprise witness who led to great shock and drama in the courtroom.
The surprise witness in question was a former aviation screener who worked for a foreign military during the civil war in the former Yugoslavia. I didn't understand, or didn't remember, which country's military the witness said he worked for, and apparently the Federal government lawyer didn't either, because she stood up and started admonishing him that he shouldn't be here at all without following proper government protocol. He politely corrected her -- "Perhaps you didn't hear me properly, ma'am" -- and said that he had never worked for the U.S. government in any capacity. She sat down.
He proceeded to testify that in his extensive military experience with improvised explosive devices and with aviation security screening, he had learned and taught other people how to deal with suspected explosive devices safely.
First follow-up question: If you think a bottle contains an improvised explosive device, is it appropriate to shake it?
No, that's almost the worst thing you can do.
Second: Is it appropriate to open the bottle?
No, that's the worst thing you can do.
The defense then argued that Ms. Ramos could not really have believed that the ibuprofen bottle in question contained an improved explosive device, because she had testified that, on removing it from Barlow's bag, she became suspicious of it, then shook it, and then opened it. These actions were the most dangerous actions she could possibly have taken if she really believed that the bottle might contain explosives (as she testified) -- they were the actions most likely to get her and her co-workers killed. Therefore, she must actually have believed that the bottle contained drugs (not what she was searching for) rather than explosives.
I found this argument compelling, and it looked like a lot of other people in the courtroom did too. Unfortunately, some of the questions that would have made it stronger (for example, whether screeners are trained to shake suspicious items, whether screeners are trained to open them, whether they ordinarily do these things) had already fallen to Federal government objections during Ms. Ramos's cross-examination, and therefore there was no evidence in the record about whether Ms. Ramos was following proper protocol when she (apparently with nearly suicidal incaution, or else suspicion of something outside of her jurisdiction) shook and opened the suspect bottle.
The final witness was Barlow himself, and he gave an entertaining performance, grabbing the actual suitcase that Ms. Ramos had searched back in 2003, and revealing to the court that he had packed it that day with many of the very items it had contained when he was arrested, including an ibuprofen bottle of the very same type Ms. Ramos had discovered, in the very same pouch in which she had discovered it, and this time packed with oregano and dried edible mushrooms. Barlow added that the courthouse security screener had let his bag pass through unmolested and had not seen anything amiss with it. (I also found this a compelling argument, but the judge did not; he said that it was not a suitably controlled experiment, which was true. It is entirely possible that the court's security is not as tight as an airport's, that the airport has better equipment, etc.) Barlow then unpacked the suitcase in front of the judge, revealing where the ibuprofen bottle was, and showing that one would have to search very deeply within the bag in order to discover it.
Despite the drama and entertainment that developed at the end of the defense testimony, the judge ruled against Barlow, denying the motion to suppress and ruling that the search was lawful and that the results of the search could be introduced into evidence against Barlow. In his ruling from the bench, there was not a lot of intricate logical argument about caselaw; instead, it was dominated by references to common sense. (In appellate courts, in my experience, and perhaps even in Federal trial courts, judges may be more apt to plunge into abstractions and theoretical principles and the categories drawn by caselaw; this judge seemed extremely disinclined to do that. I do keep in mind that he had only seen the case file for the first time two hours before, and that he was perhaps surprised by the explosion of highly abstract civil liberties arguments, some of them likely matters of first impression. I imagine that usually disputes in state trial courts are a good deal more concrete!).
The judge mentioned that the penalty Barlow would face, if convicted, would not be particularly severe, and seemed to express slightly obliquely the view that it would be in Barlow's best interest to plead guilty -- and that it was surprising that he hadn't done so, or would be surprising if he didn't do so. (I think there's also a class issue at work here. Most defendants can't afford to fight for principle and can at the very best afford to look out for themselves, not for the abstract rules by which the fourth amendment is brought to bear on a class of cases.)
The judge remarked that obviously it must not be the rule that screeners have to ignore contraband when they find it. So the question, he said, is whether they have a reason to look in the first place; if they have a reason to look, then they can use their own judgment -- and that's what Ms. Ramos did. When she shook the bottle and opened it, that didn't indicate that she was looking for drugs; perhaps she was stupid to do so, but being careless about one's own safety is not sufficient to make a search unreasonable under the fourth amendment. She used her own judgment about the nature of the threats and the best way of investigating them, which is a reasonable search. Hence Barlow's motion must be denied; his argument about reasonableness, while founded on a commendable concern with privacy, is too broad in its implications, because it would ultimately suggest that screeners must ignore contraband they find.
Apparently, Barlow did intend to suggest this. At least, he was prevented from introducing a lot of evidence about how screeners do things that are useful for finding drugs. At a minimum, Barlow wanted to suggest that screeners who are supposed to be looking for explosives should not be permitted to use search techniques or procedures that are specifically aimed at finding drugs rather than explosives (arguably, for example, shaking a bottle).
The stronger claim that screeners really ought to ignore non-explosive contraband they discover while searching luggable is advanced in a recent Washington Post op-ed by Peter Moskos, a law professor and former police officer. Moskos argues that privacy has been undermined by allowing intrusive searches that were originally justified for one purpose to be used as general searches for evidence of unrelated activities. Noting the general expansion of police power entailed by the blurring of the lines between rationales for searches, and the likelihood that justifications for searches will end up being merely pretextual, he concludes:
One must expect law enforcement to use all its available tools. As a law enforcement officer, why deal with the tedious process of probable cause, judicial approval and paperwork?
In order to stop and search any suspect, not just a terrorism suspect, law enforcement need only wait for a person to enter an implied consent area such as a subway or a shopping mall. Their action justified by the "war on terror," police may then conduct a full search. The true object of the search -- most likely drug possession, but any contraband will do -- is unrelated to terrorism.
[...]
In airport security today, items deemed suspicious are not necessarily dangerous: Large amounts of cash, pirated CDs, pornography and, of course, drugs -- not just illegal drugs but even prescription drugs in certain circumstances. [...]
The solution -- the balancing of public safety with constitutional liberties -- is surprisingly simple. The only way to prevent creeping use of implied consent is to limit the doctrine of plain view. Before searching a person, the government must choose either plain view or implied consent. If the government must search without probable cause, let it search, but only for illegal weapons or bombs. If security outweighs the Fourth Amendment, the scope of such searches must be limited to objects representing a clear and present danger to public safety. Any unrelated suspicious or illegal objects found must be ignored.
This seems to be the view the judge rejected as absurd, but I think it would be an improvement over the status quo. (Moskos seems to think it is a lost cause to hope for his principle to be adopted in connection with aviation, although he gives no reason why it shouldn't be.)
I like the analogy of physician-patient confidentiality. Doctors and other health professionals routinely learn about illegal activity. Not only are they not required to disclose what they learn to law enforcement, they are forbidden to disclose it to law enforcement. A doctor may learn about someone's routine use of illegal drugs, for example, but the doctor is forbidden to call the police and turn the patient in. There are sound and easily-understood reasons for this; the doctor's role requires that the doctor learn things about the patient that are very personal and private and this role can only be properly fulfilled if the doctor is not also required to perform an unrelated law-enforcement role. There are very narrow exceptions that allow doctor-patient confidentiality to be breached in order to prevent serious harm to a third party (such as ongoing child or elder abuse or a credible threat to murder someone) or the most extreme cases of self-harm such as a credible suicide threat. General criminality, including regular drug use, definitely does not cut it. Whenever I go to a new doctor, I'm asked to fill out a form that specifically asks what illegal drugs I use and how frequently; it is clear that the doctor is forbidden to report my answers to law enforcement.
Given the understanding that the role of a luggage screener is to detect safety threats to an aircraft, and not to detect general criminality (which would, according to some courts, be forbidden by the fourth amendment if it were the luggage screener's goal or prior intention), it seems only plausible to me that the law should, in fact, instruct screeners in that role that they must ignore other contraband or other violations of the law that they happen to discover, just as doctors must. I see nothing more perverse, unusual, inappropriate, or harmful about airport screeners not reporting evidence of drug possession or drug use than about doctors doing the same thing. Both are certainly in a highly unusual and intrusive position of knowledge and power, and the purported social benefit of each's job is plainly not that more people will be arrested for drug possession!
I wonder if I would see this differently if I thought people should not be permitted to possess drugs and carry them when they travel.
I'm sorry for covering so many different topics in my account; I'm sure that I have managed to bore almost every possible reader in some way or another. Thanks to everyone who is trying to defend travellers' privacy, and let's hope that the spell of national security, sensitive security information, and the like will lose some of its magic power.
I've just been reading portions of Secrets: A Memoir of Vietnam and the Pentagon Papers by Daniel Ellsberg (I'm writing a separate post about that book), and while I was working on this post, I happened to open to this quotation by H. R. Haldeman ("Oval Office tapes, June 14, 1971, on the impact of the Pentagon Papers"):
To the ordinary guy, all this is a bunch of gobbledygook. But out of the gobbledygook comes a very clear thing: you can't trust the government; you can't believe what they say; and you can't rely on their judgment. And the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it's wrong, and the president can be wrong.
