The Fictional Right to Privacy

Constitutional Law 101

Supreme Court Justice Louis Brandeis in 1928 said it best in his dissent in the Olmstead vs US 277 US 438 (1928) wiretapping case …

“The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality, the right to be left alone …”

Justice Brandeis had it right a long time ago … But things do change …

Related privacy issues

It comes as no surprise that there have been strenuous objections by business aircraft people to the FAA’s recent proposal to monitor private aircraft movements. There have been more than 700 objections filed against the FAA’s proposal.

This policy will give anyone in the world the equivalent of an Internet homing device to track movements of citizens and company aircraft in real time through sites such as Flight Aware and others. How true. The “do not track” program (BARR) for operators of private aircraft will be eliminated so that all IFR flights may be tracked by anyone. So much for privacy.

The DOT has already approved the new proposal to drop protection under the BARR program. The FAA’s proposal is in the works and will only allow protection of flights if they can show “a valid security concern,” if their flight information is disclosed on line. Keep in mind that all jets must file IFR in order to go anywhere. By the way, many of your personal cell phones are also programmed to track your calls and your location. When will all private aircraft be tracked? Who needs a warrant anymore?

We have to keep in mind that where the corporate boss has no privacy, the technicians who look after his aircraft and crew have no privacy either. Technicians in certificated activities have already had their privacy rights invaded in regard to drug and alcohol testing. Interesting to note that European activities have not. It’s no wonder they can outbid our domestic repair stations on outsourced work.

The Obama administration had pledged to protect citizens’ privacy rights, but it looks like they are allowing the FAA to trample them. What’s to stop government from releasing airline passenger manifests, your credit card use, driver E/Z pass hi-way information, cell phone traffic, etc. Again, no warrants necessary here.

There is a long history of a citizen’s right of privacy even where there have been compelling reasons to deny such privacy. The FAA and DOT could be responsible for a dangerous and invasive release of aircraft flight activity. Lives could easily be in danger as well as private business interests.

Privacy: SMS and ASAP

Private proprietary information is a primary objection to many of the FAA data collection programs recently enacted by FAA fiat including the new vaunted SMS program which is now being required of all Part 121 air carrier operators. Further, it is planned to be extended to repair stations, airports, and no doubt Part 135 operators in the near future. No one really knows the scope of the data to be collected, but it will be large and probably sweep up much private and proprietary operating information.

We all remember when ATOS and CSET were impressed upon airlines and FAA personnel, both wholly unprepared or incapable of applying the standards required. ATOS was labor intensive and time consuming and only recently found to be a failure by the FAA Inspector General. The FAA never could have enough inspectors to complete the ATOS program and still does not. This failed program is still active even though it has been declared a failure. Now FAA moves on to a new initiative promoted by ICAO and its EU partners, that will allow for “sharing” of safety operating data among other things.

The significant initial issues dealing with the implementation of an SMS system and still of concern, has to do with the collection, sharing, and management of safety information and protection of and access to private, personally identifiable information, more particularly, proprietary operating data. Information, for example, that has been submitted through FAA programs such as ASAP, the Aviation Safety Action Program, was also initially rejected by some air carriers because of the lack of guarantees for protection of sensitive information.

I can recall the American Airlines, Cali, Colombia accident and the litigation it spawned. The airline tried unsuccessfully to prevent the release of proprietary safety data related to that crash.

The whole purpose of voluntary safety data collection must be based on the absolute protection of the data from use during trials or otherwise made public. Where it becomes apparent that ASAP and SMS data may be available to the public then there will be no participation in these programs. So far, that protection has not been shown.

A second objection has been cost. Some have pointed out that the whole program is designed to make money for the people who prepare program manuals and audit systems.

Since overseas flying activities will require a SMS in place before you can operate overseas, there is a whole homegrown industry now established for the creation of and implementation of the system. Third-party participants are clearly in business to make money on the program, but the bottom line is that somebody has to do the work. Some have even suggested that a SMS should be only a voluntary program. Why not?

Bilateral maintenance sharing agreements

On top of this is the fact that we have a “sharing” agreement with EASA in the works already. The Bilateral Accord (BASA) was signed in 2008 and already expands the relationship of the FAA and EASA (the European Aviation Safety Agency). It requires cooperation on such matters as aviation safety and other areas of operations and includes the exchange of what may be confidential safety information with EASA and whoever else in Europe has access. What has happened to that program?

Make no mistake, there are some serious implications in this arrangement that could be another step toward having ICAO and EASA, being the single management source for aviation safety matters.

We initially refused the BASA agreement on the issue of inspection of foreign repair stations. And, so far as I can see, we have not been successful in demanding that or drug and alcohol testing of personnel at these facilities.

Accident investigation is another area of serious concern. In France, and other EU countries, for example, every accident can be considered a crime and a trial commenced on that issue. The Concorde crash trial and conviction of four people including three U.S. mechanics, is an example. The conflict between accident investigation for cause and judicial proceedings is not resolved and can present huge obstacles to cooperation between the parties to these agreements.

Other privacy issues

The European Union, to its credit, has just instituted a law to prevent “cookies” from being installed in citizens’ computer programs. The EU’s new Internet privacy law came into effect on May 26, 2011. Whether or not it will be enforced remains to be seen.

As we all know by now, many people collect information about you when you visit their web sites. They use something called “cookies,” which allow them to collect all sorts of information. The EU makes this illegal without your permission. Online privacy has become a growing concern for many consumers and business interests. The recent example of several high profile hacking incidents are making people increasingly concerned about what type of information should be collected and stored about them.

In California, however, an online privacy law recently failed to pass the legislature. This law was designed to limit the data visible on social networking sites. Aggressive lobbying by Facebook, Google, Twitter, and other interested firms argued against this law. Some have suggested that we need a federal law like the EU just put into effect. We’ll see …

Our own IRS also is coming under attack for aggressively seeking to collect more taxes by ordering small businesses to turn over exact copies of their electronic records in their business software programs. Many fear that customer lists, personnel data, confidential client information, and other unrelated information will trigger other fishing expeditions beyond the scope of IRS interests. Besides endangering customer privacy, this could drive customers away.

Until the right of privacy in all aviation safety data collection programs is guaranteed by federal law there can be no purpose in promoting such programs.