Plan to Eliminate Opt-Out for Aircraft Tracking Raises Concerns

Photo by Jerome_K

Last month, the Federal Aviation Administration (FAA) announced a proposed rule that would eliminate the ability of private aircraft owners to opt out of a public flight tracking system. This is a potentially troubling policy change that could expose sensitive flight plan information for thousands of private aircraft, raising issues over privacy, terrorism, stalking, and corporate espionage.

Currently, the FAA displays the tail numbers, locations, and flight plans of private aircraft in real-time over the FAA’s publically available Aircraft Situation Display to Industry (ASDI) and National Airspace System Status Information (NASSI) feeds. These systems track all aircraft flying under Instrument Flight Rules in the United States, and allow anyone with Internet access to track the historical and near real-time locations of aircraft ranging from private jets owned by celebrities to small Cessna’s owned by flying enthusiasts. However, the FAA’s Block Aircraft Registration Request (BARR) program currently allows private aircraft owners to opt out of having this information broadcast over the Internet.

The FAA’s proposed rule would largely eliminate the BARR program. Under the FAA’s proposed rules, only aircraft owners with a “Valid Security Concern,” defined as a “verifiable threat to person, property or company,” may be excluded from the tracking system. According to the FAA, “[a] generalized security concern or privacy interest no longer will suffice to block the aircraft from the ASDI data feed.”

In the Federal Register notice announcing the proposed rule, the FAA argues that the policy change will not adversely affect privacy, noting courts have previously ruled the information that would be disclosed is not sensitive enough to qualify for exemption in the context of the Freedom of Information Act (FOIA). Any flights that do face specific security concerns can still have their information blocked from the system under the “Valid Security Concern” exception. The FAA therefore claims the policy will be beneficial to the public, consistent with the goals of FOIA and the current Administration’s emphasis on promoting increased openness and transparency in government.

While it is true that the impetus for the FAA’s actions was a court ruling over FOIA, the court only ordered the FAA to release a list of planes whose information is blocked, not to cease the block program and publically reveal their flight data. Moreover, that ruling did not even address the question of whether FOIA’s statutory exception for “clearly unwarranted invasion[s] of personal privacy” extends to the disclosure of flight information. Instead, the new proposed policy change goes far beyond what is required by FOIA or the court. The FAA’s justification of transparency in government is also lacking, as the information that would be released does not relate to shining light on government actions — which is the purpose of FOIA — but instead concerns the movements of private actors.

While the benefits are unclear, the proposed rule seems to pose an unnecessary risk to individual privacy and corporate security. Flight tracking data has already been used to invade individual privacy on multiple occasions. For example, on May 21, 2011 the Wall Street Journal published a front-page article using ASDI data to construct detailed travel histories for public figures from Bill Gates to John Travolta. And in 2009, a blogger discovered that Steve Jobs had undergone a liver transplant in Tennessee by tracking his plane to Memphis. Not just celebrities are put at risk, however. The tracking data could also be used for corporate espionage, as rival companies could gain knowledge of secret business deals and other sensitive information based on where their competitors’ planes have traveled. In a worst case scenario, terrorists could take advantage of real-time tracking data to target corporate executives and other VIPs for attack.

While CDT appreciates the FAA’s desire to promote greater openness and transparency, the proposed rule’s benefits are far less clear than the risks to individual privacy and security. Individuals should not be forced to articulate a specific security threat in order to enjoy basic privacy, yet under the proposed rules, only in instances where individuals face a known, verifiable threat will they be able to block the release of information about their movements.

The proposed rule also potentially sets a negative precedent for government publication of other private travel records, ranging from airline passenger manifests to smart toll passes. This concern is shared by Sen. John Tester (D-Mont.) and several other senators, who sent a letter to the Secretary of Transportation on July 1, opposing the FAA’s move to abolish the BARR program, citing many of the privacy concerns outlined above.

The FAA should reconsider its proposed rule and preserve the ability of private aircraft owners that are concerned about their privacy and security to opt-out of being tracked.