Several groups are appealing to the U.S. Supreme Court a Ninth Circuit Court of Appeals ruling on a secret Transportation Security Administration (TSA) regulation. The regulation requires airlines to check the identification of passengers. The Ninth Circuit held that, even though the rule is not publicly accessible, it does not violate the Constitution's protection of due process.

The lawsuit originated from an experience John Gilmore had when he attempted to board a plane in California, bound to Baltimore-Washington International Airport, more than four years ago. A Southwest Airlines clerk required Gilmore to show a form of identification in order to board the plane. When Gilmore questioned the policy, he was informed that it was a government requirement which could not be shown to the public. TSA considers the regulation to be sensitive security information (SSI) and is, therefore, kept secret from the public.

The central question at issue in the case, Gilmore v. Gonzales, was whether or not TSA's regulation violates due process. Gilmore argued that the law is unconstitutionally vague because it regulates public behavior but, due to its secrecy, does not inform people of what conduct is prohibited. On Jan. 26, the Ninth Circuit rejected this argument on the grounds that the regulation does not impose criminal sanctions and merely prevents people from boarding a plane. The court concluded the rule does not regulate public behavior because there are other forms of available travel. Moreover, people have "actual notice" of the identification policy because airlines publicly post the identification requirements.

Gilmore appealed the decision and petitioned the U.S. Supreme Court, which has yet to indicate if it will review the case. Several open government organizations submitted amicus briefs supporting Gilmore's arguments and encouraging the Court to take up the case. The groups contend that the TSA's secret regulation violates the basic principles of a free and open democratic society. "Unpublished, secret laws undermine the very essence of self-government," wrote the Electronic Privacy Information Center (EPIC) in an amicus brief. "Central to the American form of government has been a longstanding commitment to public trials and to openness in government decisionmaking."

The Electronic Frontier Foundation and seven sign-on groups argue in another amicus brief that TSA's regulation not only violates the Constitution's protection of due process, but also the Freedom of Information Act (FOIA). "Congress created a mechanism to ensure that agencies would not be permitted to impose secret law when it passed the FOIA, a law that grants the public the right to obtain all government agency records with few exceptions."

Needing four justices to agree to a review, it is uncertain whether the Supreme Court will take up the case. If the Court declines to review the case, the justices will essentially allow the Ninth Circuit decision to stand.