In a 3-0 decision, the 9th Circuit Court rejected John Gilmore's appeal.

The one ray of light from the court was its confirmation that the secret law "requires that airline passengers either present identification or be subjected to a more extensive search".  This would be a surprise to anyone who reads a TSA checkpoint sign or TSA's own website, all of which claim that ID is "required".  It is now clear that air passengers are NOT required to present identification; instead, they can opt to be searched, as a "selectee".

Mr. Gilmore recommends that every traveler who is concerned with privacy or anonymity should opt to become a "selectee" rather than show an ID.  We are very likely to lose the right to travel anonymously, if citizens do not exercise it.  TSA and the airlines will attempt to make it inconvenient for you, by wasting your time and hassling you, but they can't do much in that regard without compromising their avowed missions, which are to transport paying passengers, and to keep weapons off planes.  If you never served in the armed services, this is a much easier way to spend some time keeping your society free.  (Bring a copy of the court decision with you and point out some of the numerous places it says you can fly as a selectee rather than show ID.  Paper tickets are also helpful, though not required.)

The judges unfortunately did exactly what the government asked them to do: Gilmore's appeal was rejected.  His case was transferred from the District Court to the Ninth Circuit, and then the case was decided, without argument and without an opportunity to present the facts.

In their opinion, the judges addressed the ID issue as if it only affected air transportation, explicitly disregarding Gilmore's allegations that IDs are now also demanded on trains, buses, and ships.  Following unbalanced rules set out by Congress in a paragraph specific to challenges to TSA regulations, the court only permitted itself to examine evidence provided by the Government.  The evidence was neither available to the public nor to Mr. Gilmore and his lawyers.  Gilmore was never permitted to present evidence of widespread ID demands in all forms of transportation.  The court then had the gall to declare that since there's no evidence that the ID demand affects more than one form of travel, it is therefore constitutional.

The court also stated that secret laws that constrain the exercise of constitutional rights are constitutional, as long as they are not "penal statutes".  They reasoned that that such laws are particularly justified if the government posts signs that describe the secret law in vague and misleading ways, as TSA has done in airports.  The court also decided that secret laws don't vest unlimited discretion in security officers, because the secret directive "articulates clear standards".  The court was silent on whether those standards are applied in practice, even in Mr. Gilmore's attempts to fly, concluding that "because all passengers must comply with the identification policy, the policy does not raise concerns of arbitrary application." Public scrutiny by a citizenry who are not permitted to know the rules, combined with nonexistent scrutiny by the judiciary, are apparently sufficient in the judges' minds to keep us safe from the arbitrary abuse of secret laws.

The Court stated that if a citizen is unwilling to show ID at airports and is also unwilling to consent to an additional, arbitrary physical search, then that citizen is "free to leave" but not free to travel.  That's not free.

Mr. Gilmore's favorite quote from the opinion reveals the convoluted decision-making process of the court: "...he would not be permitted to board the plane.  There was no penalty...".  So now we know: having your government hinder you from traveling in your own country is not a penalty.