Ethan Zuckerman’s online home, since 2003

The people versus John Perry Barlow, or, as we like to say, “Barlow versus The Man”

My friend John Perry Barlow was arrested a last September at SFO. He was flying from San Francisco to New York and was removed from a Delta flight when his bag was screened by security and a very thorough search revealed small quantities of marijuana, ketamine, ecstacy and psylocibin mushrooms. After a memorable evening in police custody, John Gilmore – co-founder, with Barlow, of the Electronic Frontier Foundation – bailed him out of jail.

Facing misdemeanor drug charges, many people choose to plead guilty, pay a fine and go on with their lives. Barlow’s not one of those people. He contends that the search for drugs was a violation of his 4th Amendment rights and he’s fighting the charges on constitutional grounds. His contention is that, while he may have agreed to a search of his bags for explosives, he did not agree to a detailed general search without a warrant. As a result, while the search was legal for the purpose of discovering explosives or other materials that could have harmed the flight, it was an illegal search and seizure for drugs or other contraband.

(Barlow acknowledges that he’s lucky to be able to challenge the arrest. He’s got friends like Gilmore who are willing to pay for his defense, and he’s unlikely to lose his job(s) should he be convicted… indeed, most of his employers (one of whom is the Berkman Center) are likely to support him publicly.)

On Wednesday, Barlow’s motion to suppress evidence was denied by the California Superior Court in San Mateo. Vitanuova, who spent the day in the courtroom, has an excellent blogpost on the events that transpired. Barlow and his lawyers attempted to demonstrate that the search that revealed his contraband was not looking for explosive materials, but clearly searching for drugs. The TSA screener who found the contraband in Barlow’s bag testified that she thought the Advil bottle in the bottom of his bag might be an improvised explosive device, so she shook it, and then opened it. Barlow and lawyers brought a non-US baggage screener to the stand, who testified that shaking an opening a bottle you thought might be an explosive device would be the last thing a trained baggage screener would do.

What’s especially interesting about this hearing, according to Vitanouva, is that the attorney for the state of California was joined by a federal attorney, there to ensure that none of the “sensitive security information” related to TSA procedure was revealed in the courtroom. Every time Barlow’s attorneys asked questions about TSA procedure, the state attorney objected on the grounds of “relevance” and the federal attorney on the grounds of “privelege”. The judge granted all objections on the relevance grounds… which left Vitanouva deeply frustrated, as he hoped to see a ruling from the bench that either supported or challenged the US government’s “right” to have any of the SSI associated with the TSA revealed in court.

With the denial of this motion, the case moves to trial in the spring. Given the presence of the illegal substances in Barlow’s bags, and the failure of the judge to supress this evidence on constitutional grounds, it seems quite possible that Barlow will be convicted – he’s already vowed to appeal.

Why? Barlow sees his situation as a minor manifestation of a larger post-9/11 problem – the willingness of Americans to sacrifice civil rights in the name of safety. As he said to a reporter during a break in proceedings on Wednesday: “What the judge is saying is that when you are going to travel, you make yourself subject to any search no matter how thorough; the search can be as wide as possible.’’

In his blog post telling readers about his arrest and subsequent events, Barlow explains further: “But randomly searching people’s homes against the possibility that someone might have a bio-warfare lab in his basement would reveal a lot of criminal activity. And it is certainly true that such searches would reduce the possibility of anthrax attacks and enhance public safety. Still, I doubt you’re ready to go there. Yet. Given a few exotic outbreaks, you might be. Should that day come, would you still believe such searches should not be precisely limited? This may seem hyperbolic, and of course it is, but it’s actually a fairly short conceptual distance away from what’s going on in the nation’s airports at present.”

I find this case particularly interesting for a variety of personal reasons (which is why I’m taking a break from depressing Africa stories to post about it, despite the fact that roughly 10,000 other bloggers will probably write about it as well.) I travel a lot, and have been searched many times, both before and after 9/11. The nature of these searches clearly changed after 9/11. Shortly after 9/11, I found myself at the end of a long trip (Armenia, Vienna, DC) heading home on a one-way ticket from Baltimore to Albany and enjoyed a 90 minute public search of my luggage, which included the TSA screener disassembling my deoderant stick.

It became pretty clear to me at that moment that this had nothing to do with explosives – it was about drugs. And while I found it frustrating and disconcerting (you try having two weeks of your dirty underwear strewn on the floor of BWI in front of the ticket counter and see if you’re not disconcerted), I guess I’ve accepted the reality that I exit the United States every time I enter an airport and enter a high-security, low-rights zone governed by an opaque and unpredictable legal authority. Given that my career (such as it is) doesn’t allow me to stop flying – and, frankly, that my luggage is lots less interesting than Barlow’s evidently is – I have unhappily accepted the compromise.

But I’m passionately glad that Barlow has not. He’s being extremely transparent with the web as a whole about the situation, posting all the documents associated with the case online (including his arrest records – the checkboxes on Barlow’s booking sheet describe him as “calm” (though not “cooperative”) and acknowledge that his dress was “casual”, rather than “neat”, “unkempt”, “dirty” or in “disguise”. That sounds like Barlow to me.) When I saw Barlow a few weeks ago – immediately before the 2004 election – I got the sense that he was grateful for the chance to directly challenge emergence of an American security state, fighting it hand to hand rather than dancing in its general direction.

God bless you John, and good luck.

Added:

The brilliant and wonderful danah boyd was in the courtroom to show her support – she blogs about the experience.

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