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FAA Cites Open Govt. Policy On BARR Ruling
June 22, 2011
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  • June 5, 2011 By Kerry Lynch
    Citing government transparency initiatives, FAA published a notice on Friday that will strip away privacy protections for business jet operators beginning Aug. 2.
    Publication of the notice follows the Department of Transportation’s quiet announcement at 5 p.m. May 27, just before the start of the Memorial Day weekend, that it was moving ahead on plans to strictly limit the Block Aircraft Registration Request (BARR) program, which permits aircraft owners to request that their tail numbers be withheld from flight-tracking programs.
    “This action is in keeping with the Obama administration’s commitment to transparency in government,” Transportation Secretary Ray LaHood says. “Both general aviation and commercial aircraft use the public airspace and air traffic control facilities, and the public has a right to information about their activities.”
    The announcement has outraged the business and general aviation community, which is vowing to continue to fight implementation of the changes.
    The National Business Aircraft Association (NBAA), which administers the BARR program for about 3,000 participating companies and individuals, released a statement saying the decision amounts to a “paparazzi protection rule.”
    “There can be no legitimate reason for a government agency to facilitate the monitoring of wholly private activity by anyone with an Internet connection,” says NBAA President and CEO Ed Bolen. “This incomprehensible policy reversal gives anyone in the world – terrorist, criminal, tabloid stalker, business competitor – the equivalent of an Internet homing device to track the movements of citizens and companies in real time.”
    “This initiative is wholly inappropriate,” adds Aircraft Owners and Pilots Association President Craig Fuller. “Transportation Secretary Ray LaHood’s decision dismantles the fundamental privacy rights of aircraft operators – a level of privacy afforded to users of every other form of transportation. No other mode of travel can be tracked in real time by third parties and the public.”
    House Measure
    Bolen says the industry is reviewing its options to fight the changes, exploring both legislative and legal avenues. The House already has included language to preserve BARR in its version of FAA reauthorization legislation, and Bolen notes that there is bipartisan support in the Senate for the language. But the future of the reauthorization legislation remains uncertain.
    The notice on Friday comes less than three months after FAA proposed the change on March 4 and less than two months after the comment period ended April 4. Bolen notes that the speed with which the final notice was issued, which included just an eight-week review of the hundreds of comments, “is faster than any we have seen.”
    Bolen adds that the notice, for the first time, cites transparency in government as a primary reason for the change. FAA says the change “is justified by disclosure and openness requirements set forth in Federal law, executive branch directives and policies, and court decisions.”
    FAA notes that the Openness Promotes Effectiveness in our National Government Act of 2007 is designed to enhance the Freedom of Information Act statute and finds that “the American people firmly believe that our system of government must itself be governed by a presumption of openness; FOIA establishes a ‘strong presumption in favor of disclosure;’ [and] Congress should ensure that the government remains open and accessible to the American people and is always based not upon the need to know, but the fundamental right to know.”
    But Bolen believes that argument misses the mark. “It’s a rationale that we don’t think holds water.” Bolen says such reasoning mixes an open government process with individual privacy. BARR is designed to protect the privacy of individuals and corporations, he notes. Fuller points out that DOT and FAA are making the BARR changes as DOT blocks information about the movements of its own aircraft.
    FAA also has cited a court case requiring the release of the tail numbers. But Bolen argues that case discusses release of the information after the fact, not real-time flight tracking. The agency also dismissed privacy arguments, saying courts have rejected similar concerns, and government regulations do not afford privacy protections to commercial entities.
    Medical Privacy
    Fuller, however, notes that the policy change harms the individuals aboard aircraft. “I look forward to meeting the DOT official who can explain how the federal government can be fully committed to protecting individual records of medical care yet find it perfectly acceptable to allow anyone to track aircraft flown by private citizens to locations to receive medical treatment,” he says.
    “What is most puzzling about this rule is that the Obama administration has pledged to increase privacy protections, not diminish them,” Bolen says.
    DOT stresses that it will not release the names of aircraft owners or operators, disclose the identity of persons on flights or the purpose of the flights. But Bolen says, “That argument is pure sophistry. With an aircraft tail number, anyone with a little initiative can quickly determine the travelers on an aircraft.”
    The notice does permit entities with a “certified security concern” to continue to participate in BARR. Entities with a certified security concern must demonstrate a “verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against the company.”
    FAA disagrees with critics of the proposal who suggest that the agency set an “unjustifiably high bar” for operators who want their tail numbers to remain undisclosed. The requirements are justified under open government policies, the agency says.
    FAA set a July 5 deadline for individuals to relay their certified security concerns to the agency. The flight-tracking information will be released beginning Aug. 2.

    Date: 2011-06-05