STEVE INSKEEP, host:
Well, if you're flying for the holidays, you are probably going through the usual pre-security checklist: no gels or liquids over three ounces, no weapons in the carry-on luggage - aww - and make sure you've got your driver's license; although, maybe not that last one.
As NPR's Martin Kaste reports, the government may now be willing to let you fly without an I.D., but the rules are still a bit of a mystery.
MARTIN KASTE: Believe it or not, there are people who make a point of flying without an I.D., people such as Christopher Soghoian, a computer security researcher at Indiana University. He objects to showing his I.D. on privacy grounds. He says why should the government get to track where he's been? And he doubts I.D. checks make flying any safer.
Mr. CHRISTOPHER SOGHOIAN (Computer Security Researcher, Indiana University): There are no repeat offender suicide bombers, so why do they need to know who I am? Their job should be to scan my bag and to make sure I don't have any weapons on me. After that, their job is done.
KASTE: As an experiment, Soghoian and other like-minded Civil Libertarians, have been testing the notion that you must have an I.D. to board a domestic flight. And they're finding out that apparently you don't. Soghoian has done it four times now, and he says it actually saves him time at the airport.
Mr. SOGHOIAN: If you don't show any I.D., you get bumped to the front of the cue. And so, you can actually - even though they spend a good 10 minutes searching you and doing chemical analysis of everything in your carry-on bag -because of the significant length of the line, you can actually get through security faster if you don't have I.D. than if you do.
KASTE: But before you leave your driver's license at home, you should know that this travel tip comes with a big caveat. We don't really know what the government's I.D. rule is. The full text of the relevant regulation is a secret, officially its SSI, Sensitive Security Information. The Transportation Security Administration won't even talk about the rule. NPR made repeated request for an interview, but the TSA spokesperson refused to go on tape, even just to say she couldn't talk about it.
This secrecy makes things uncertain for people who show up at the airport without I.D.s. Some of the Civil Libertarians - who've been probing this system - report that if they refuse to show their driver's license on principle, they get hassled. But if they just claim they've lost their wallets, there's rarely a problem.
Professor PETER SWIRE (Former Chief Counsel for Privacy): But if you don't know the rules, then you're in the position of begging and pleading.
KASTE: Law Professor Peter Swire was the Clinton administration's privacy czar. He says the secret I.D. rule violates a longstanding American legal principle: the idea that a citizen has the right to know the laws that apply to him.
Prof. SWIRE: Famously, the Roman Emperor Caligula posted the laws of Rome high up with small writing in the temple, so people couldn't read them. And then, played gotcha and punished people if they failed to follow the laws.
KASTE: So you're comparing the TSA to Caligula?
(Soundbite of laughter)
Prof. SWIRE: I said what I said. I said that secret law is an instrument of tyranny.
KASTE: For the past few years, a lawsuit, over the issue of I.D. checks at airports, has been making its way through the federal courts. And now it may land in the hands of the Supreme Court. The plaintiff wants the Justices to rule on the narrow issue of whether the TSA may keep this rule secret, even as it's being enforced on the general public.
While legal scholars generally agree that secret laws are a bad idea, that principle is not absolute. Bill Anderson is an expert in administrative law at the University of Washington.
Professor BILL ANDERSON (Administrative Law, University of Washington): There have to be exceptions because sometimes some of these regulations have national security consequences or other reasons why they're - they should not be made available. So in the federal statutes which govern this, there are some exceptions.
KASTE: The Supreme Court will decide next month if it wants to weigh-in on this matter. Until it does, if it does, you can try the I-lost-my-I.D. trick to get security faster, but you do so at your own peril.
Martin Kaste, NPR News, Seattle.
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