WILLIAM M. SIMPICH (#106672) 1736 Franklin, 10th Fl. Oakland, CA 94612 Telephone: (510) 444-0226 Facsimile (510) 444-1704 JAMES P. HARRISON (#194979) Attorney at Law 980-9th Street, 16th Floor Sacramento, California 95814 Telephone: (916) 452-4905 Attorneys for Plaintiff JOHN GILMORE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JOHN GILMORE, Case No. C-02-3444 SI Plaintiff, vs. PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE RE OPPOSITION JOHN ASHCROFT, et al., TO DEFENDANTS' MOTION TO DISMISS, AND REQUEST TO SEAL EXHIBIT 2 Date: Under submission Defendants. Dept: Hon. Susan Illston _____________________________________/ Pursuant to FRE 201, Plaintiff submits to the court the following items: Exhibit 1. Privacy Act Notice issued by Defendants TSA and DHS, published in the Federal Register at 68 FR 45265-45269 on 1 August 2003. This Notice states, among other things, that the CAPPS-II system being challenged by Plaintiff (see Plaintiff's Consolidated Opposition MPA to Motion to Dismiss, 3:15-23) will be used for purposes of "the detection of outstanding state or federal warrants" (p. 5). This violates the doctrine in United States v. Davis, 482 US 893, 910 (9th Cir. 1973), stating that a reasonable administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it, and Torbet v. United Airlines, 298 F.3d 1087, 1089 (9th Cir. 2002) (see Opposition MPA, p. 18:15-23), (any searches to prevent airline hijacking or detect the presence of weapons and explosives, such a search must be "confined in good faith to that purpose"). Thus, such a search should not be conducted for general law enforcement purposes. A further law enforcement purpose is revealed (p. 6) by the intent to link CAPPS-II with the US-VISIT system for checking the validity of visas. The Privacy Act Notice also demands that airlines collect more identifying information from every traveler and report it to the government. (p. 4) The requirement is stated circuitously, but creates a new requirement that airlines collect each traveler's full name, home address, home telephone number, and date of birth information that is not currently collected. It states that "No additional information beyond this data is required to be collected from passengers" (p. 4), implying but not stating that this data is now required for the first time. The document says nothing about verifying this information against the traveler's ID card, continuing the practice of never documenting the ID requirement in any published regulation. However, it is reasonable to suppose that airlines will be required by a new secret directive to deny boarding to travelers whose ID does not confirm the above information, just as in today's CAPPS- 1 system the airlines validate the name and picture from the ID against the traveler's records. This document was printed from http://www.dhs.gov/interweb/assetlibrary/CAPPSII_PRIVACY_ACT_NOTICE.pdf on September 25, 2003, and is self-authenticating pursuant to FRE 902(5) (official publications). Exhibit 2. The "Airline Passenger Risk Assessment" slides presented by government subcontractor Torch Concepts at the Southeastern Software Engineering Conference on April 2, 2003 illustrate prototypes of the system that would use travelers' information plus commercial databases to single out "suspicious" travelers for denial of their constitutional rights. Page 8 describes the involvement of defendants DOT and TSA, and Torch's connection with the CAPPS-2 program. Page 23 concludes by recommending that "Passenger Stability Indicators" such as social security number, length of residence, income, and home ownership would be viable candidates for selecting who to search: those who do not provide an SSN, who move frequently, who have low incomes, or who rent their homes. If asked, Plaintiff will stipulate to the sealing of Exhibit 2. Torch Concepts has issued cease- and-desist letters, based on copyright protection, to several web sites which have republished this document. This document is authenticated with an affidavit by plaintiff John Gilmore pursuant to Federal Rule of Evidence 901(b)(1) (testimony of witness with knowledge). Exhibit 3. The September discovery of this presentation has resulted in extensive news coverage, focused on both the privacy rights of travelers and on the expansion of the air passenger profiling system. The editorial "Betraying One's Passengers" on page A30 of the September 23, 2003 New York Times is representative. The Times editorial is authenticated pursuant to FRE 902(6) (newspapers and periodicals). Plaintiff respectfully commends these articles to the court for its consideration and to the Defendants for review and any appropriate response. Dated: October 2, 2003 _____________________________________ WILLIAM M. SIMPICH JAMES P. HARRISON Attorneys for Plaintiff JOHN GILMORE