The movements of privately owned aircraft are a private affair - so say general aviation interest groups challenging proposed changes by the US Federal Aviation Administration to its Block Aircraft Registration Request (BARR) programme that may allow public access to flight data.
In April 2000, Congress established BARR under the Wendell H Ford Aviation Investment and Reform Act to protect the security interests of private-aircraft owners and operators. An individual or company only had to file a request through the National Business Aviation Association (NBAA) to "opt out" of having their flight activity made available from FAA traffic feeds to the flight-tracking websites which have proliferated since 1997.
Under the FAA modifications that became effective on 2 August, a "generalised security concern or privacy interest" is no longer an acceptable basis for the agency to honour a block request, and the FAA will not consider "speculation or abstract fears".
General aviation or on-demand operators now have to submit requests directly to the FAA and are required to provide the agency with a certified "valid security concern".
This is defined as "a verifiable threat to person, property or company, including 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 a company".
The rationale and history leading to BARR are laid out in the FAA's 2 August amendment to its June 2006 Memorandum of Agreement (MOA) for Access to Aircraft Situation Display to Industry (ASDI) and National Airspace System Status Information (NASSI) data.
To facilitate management of traffic flows, the FAA tracks all aircraft operating under instrument flight rules using radar services in the National Airspace System. Military and other sensitive flights, such as Air Force One, are filtered out from feeds to data subscribers.
ASDI feeds depict call sign, tail number, latitude/longitude, heading, altitude and flight-plan information. They allow flights to be tracked from beginning to end. The NASSI feed includes other components, such as runway visual range.
NBAA project manager Scott O'Brien says the FAA distributes flight data feeds under agreements with two classes of users.
Class 1 users, such as airline flight dispatchers, must demonstrate legitimate reasons to receive the data in real-time. Class 1 users are also audited by the FAA to ensure the security of all data on the system. Class 2 users are mainly flight-tracking websites, such as FlightView and FlightAware, and have to meet FAA data security requirements. Class 2 users receive flight data in "near-real-time" - that is, with a five-minute delay. The MOA emphasises flight data must not list who is on board or the purpose of the flight.
The FAA says that if it approves an opt-out request, aircraft flight data is blocked from the feed for a year. The NBAA supports keeping the information hidden to protect the security of executives and prevent disclosure of company information to competitors.
The FAA says it implemented the modification in "the best interests of the United States government and the general public".
It also notes that the "Privacy Act does not protect GA operators and Part 135 on-demand charter aircraft from public knowledge of their flight information". It adds that the MOA is not a rule and so is not subject to the rule-making process.
The FAA's justification for change centres on government transparency rules. According to the MOA, the agency's action conforms to the Federal Open Government Act, Executive Branch policies and directives, and makes the government "more open, transparent and accessible to the public". The FAA's action also carries out the Department of Transportation Open Government directive, that promotes proactive release of department data, and conforms to the Freedom of Information Act (FOIA). The MOA notes that privacy is never implicated by disclosing flight data.
The business aviation and GA sectors object, labelling the new restrictions "arbitrary and capricious". On 29 August, the NBAA, the Aircraft Owners and Pilots Association, and the Experimental Aircraft Association filed a joint lawsuit against the FAA in the US Court of Appeals.
The aim of the petition is to force the FAA to revert to its original BARR programme. It refers to the FAA order as "unreasonable" as it "fails to explain how releasing private flight data would promote its asserted interest in government openness and disclosure".
In addition, the modification "poses a colossal risk to personal privacy, confidentiality and security", noting that the MOA acknowledges that "agency disclosures must always yield to valid privacy concerns".
Ed Bolen, NBAA president and chief executive, says the MOA "violates cherished rights of private citizens". "It is setting precedent for government tracking of private citizens in automobiles, which operate the federally funded highway system, or tracking citizens through their cell phones which use the federally funded GPS system," Bolen adds.
The FAA claims the central purpose of the FOIA is to ensure government activities are "opened to the sharp eye of public scrutiny", and does not mean the disclosure of "information about private citizens that happens to be in the warehouse of the government".
The FAA's justification for citing FOIA has its roots in December 2008, when the media learned that executives from the top three automotive manufacturers in the USA used private corporate jets to travel to Washington to request federal bailout funds.
General Motors tried to block its aircraft movements from the tracking feeds. Investigative news agency ProPublica sought to find out via the FOIA what other companies were blocking flight data. In June 2009, NBAA went to court to stop the release of its records. In February 2010, a court ruled the list of blocked aircraft in the BARR programme should be released under the FOIA. Bolen, however, says the judge's ruling did not address public dissemination of real-time flight data.
The amended MOA has generally received a negative reaction. A majority of the 700 comments received by the FAA on the MOA were opposed to the change. The FAA has said it disagrees with comments by general aviation groups - such as the NBAA, the National Air Transport Association, and the General Aviation Manufacturers Association - that the agency failed to justify the proposed change and explain how it was in "the best interests of the government and public".
Congress has also expressed concern. In a July 11 letter to DoT administrator Ray LaHood, 33 representatives expressed "serious concerns regarding the FAA proposal" and said it "sets a dangerous precedent for the ability of government to disseminate the travel information of any citizen, regardless of the mode of transportation". In a July 29 letter to the DoT, 26 senators called the MOA change a "troubling reversal".
Litigation prevents the FAA from answering questions about BARR, including whether it is considering further amendments to the MOA or under what authority it can determine what constitutes a security threat.
"The bottom line is these new limitations on the BARR programme really fly in the face of some of America's most cherished values," Bolen says. "We at NBAA simply do not believe we can allow those limitations to stand."
BLOCK AIRCRAFT RESTRICTION REQUEST - PROGRAMME PROCESS
Applicant submits opt-out request - based on general privacy security concerns - to NBAA, which transmits requests to the to the FAA on a monthly basis
When block requests are approved, flight data on Aircraft Situation Display to Industry and National Airspace System Status Information near-time data feeds is blocked for one year
Applicant submits "opt out" request to the FAA's ATO System Operations Services with required Certified Security Concern document detailing "valid" concern
If not approved, aircraft flight information on ASDI and NASSI near-time feeds are accessible via flight-tracking sites
If approved, flight data are blocked for one year on ASDI and NASSI near-time feeds