WITHOUT COOPERATION BETWEEN AIRLINES, FEDERAL INTERVENTION IS NEEDED TO MANAGE UNRULY AIRLINE PASSENGERS

Author: Caroline Smith, Senior Editor

Shortly after the terrorist attacks on September 11th, 2001, President Bush directed the nation’s intelligence agencies and the FBI to create a single, comprehensive watch list of suspected terrorists in regards to air travel.[1] Since then, this “No-Fly” list has been curated, updated, and bestowed upon the Transportation Security Administration (TSA) and operating US-based airlines to prevent anyone considered a terroristic threat from boarding a commercial flight.[2] For years, the contents of the list and criteria used at its bedrock was considered top secret.[3] That is until 2006, when an aviation security informant provided a copy of the “No-Fly” list to 60 Minutes.[4] It was in this moment that specific details, such as some of the names and the size of the list, were revealed to the general public, and consequently, criticism began to ensue about the overall quality and nature of this list, as well as the legal implications it imposes when it comes to civilians’ and other travelers’ due process rights. [5]

Regardless of the legal criticisms that the “No-Fly” list received, almost twenty years later, the persistent threat of global terrorism has remained embedded in the minds of most Americans while traveling, especially regarding air travel. In recent years, however, a recurrent issue that has become top of mind is the large influx of out-of-control and unruly passengers who continue to abuse and threaten the overall safety and wellbeing of airline workers and fellow passengers aboard airlines.[6] Out of necessity to help combat this new, persistent issue, individual airlines have responded by creating their own “No-Fly” lists. As a result, specific passengers are prohibited from boarding their airlines due to previous aggressive and often violent incidents of this nature.

Largely due to protests against COVID-19 mask mandates, airlines saw a massive uptick in hostile behavior from passengers, with incidents involving abusive passengers with airlines increased by nearly 600% between 2019 and 2022.[7]  Additionally, a survey of flight attendants in 2021 found that 85% had at least one run-in with an unruly passenger and 17% said they were involved in an incident that turned physical.[8] Moreover, the Federal Aviation Administration (FAA) investigated 831 unruly-passenger incidents in 2022 (up from 146 just four years ago), with more than 8,000 general reports of unruly passengers between 2021 and 2022. [9]

Because of these staggering statistics and overall concern for both passengers and airline workers, this has made individual airlines’ “No-Fly” lists critical in safe air travel for all. Similar to the government’s “No-Fly” list, airlines apply both federal list-based no-fly rules, while also incorporating their own criteria, procedures, and distinct proprietary blacklists and rulesets.[10] One of the biggest differentiators to fly/no-fly decision-making logic between airlines and the federal list is that generally airline’s decisions involve a greater degree of human discretion and judgment on how to interpret and apply the criteria.[11] Since internal “No-Fly” lists are not shared between individual airlines, however, the option for a chastised passenger on one airline to fly with 62 other operating airlines in the US perpetuates the occurrences of potential abuse.[12]

As of 2021, it is suggested that more than 4,000 people have been slapped by a flight ban across most US airline carriers (not including those passengers banned by two of the largest airline carriers, American Airlines and Southwest, which do not make this data public).[13] Therefore, it might seem like a “no-brainer” to start sharing these lists between airlines; however, not all airlines seem to agree. It was Delta Airlines, at the peak of these violent instances in 2021, who started the conversation by asking other airlines to share their “No Fly” list with the hope “to further protect airline employees across the industry — something we know is top of mind for you as well… A list of banned customers doesn’t work as well if that customer can fly with another airline.”[14] Even though Delta, as one of the largest airlines with over 1,600 no-fly individuals, has pleaded for a shared network of private airlines’ no-fly lists, there is still opposition as Southwest Airlines executives have already spoken out against the idea of sharing lists out of concern of legal implications.[15] Likewise, other carriers, such as United and American Airlines, have declined to publicly comment on the proposal, with industry experts saying the proposition raises privacy, antitrust, and operational hurdles.[16] These arguments are immaterial, as sharing passenger names is arguably substantially distinct from the privacy and antitrust laws that prohibit airlines from collaborating with competitors on routes, prices, and other business strategies.[17] Nevertheless, while airlines continue to wonder and pass-the-buck, more dangerous incidents are and will continue to occur on flights every day.

Even with the lack of action by most airlines, there still may be hope for the safety of airline passengers and workers. Under a recently re-proposed bi-partisan bill, The Protection from Abusive Passengers Act, the Transportation Security Administration (TSA) would create and manage a program that bars passengers who are fined or convicted of serious physical violence or intimidation from flying on commercial aircrafts.[18] "We don't want someone flying American to then be able to fly Delta, etc., so this would be a list managed by the TSA… so that it applies to all airlines so that you can't get around, you know, individual carriers' no-fly list policies."[19] To mitigate due process concerns, transparency and notice will be provided to banned individuals, including guidelines for removal and opportunities for appeal.[20] As noted by Senator Jack Reed:

Mask mandates have ended. Still, the epidemic of air rage continues, and this elevated level of in-flight violence has to stop. We must do more to protect employees and the travelling public. The Protection from Abusive Passengers Act would require TSA to develop a no-fly list for individuals who engage in dangerous behavior on a plane or at a security checkpoint. It ensures the list will be fair, transparent, and includes an opportunity for appeal. There should be zero tolerance for any violent behavior that affects flight safety, and this bipartisan bill will help us get there. [21]

Opposers of this bill, however, believe it should be on the airlines, not the government, to handle these unruly passengers. For example, a spokesperson for the American Civil Liberties Union (ACLU) commented, “If Congress wants to further reduce air-rage incidents on aircraft, it should look at forcing the airlines to make flying a less miserable experience.”[22] This rhetoric is neither helpful nor constructive as it continues to perpetuate an environment of hostility. Clearly, airlines have been at an impasse when it comes to cooperation pertaining to treatment of unruly, violent passengers; therefore, government intervention is needed to ensure safety in the future for air travel. This bill currently awaits a potential vote in the Senate Commerce, Science, and Transportation Committee.[23] Not only will the passing of this bill justly punish hostile, disorderly passengers, but it will also serve as swift deterrence to future passengers from acting out and harming other passengers and valued airline workers going forward.

[1] Ira Rosen, 60 Minutes: Unlikely Terrorists On No Fly List, CBS News (Oct. 5, 2006) https://www.cbsnews.com/news/unlikely-terrorists-on-no-fly-list/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] David Proper, New bill proposes putting out-of-control passengers on no-fly list, NY Post (March 29, 2023) https://nypost.com/2023/03/29/unruly-passengers-could-be-placed-on-new-no-fly-list-under-proposal/.

[7]  Id.

[8] Hugo Martin, Facing ‘air rage’ when you fly? One airline has a solution, Los Angeles Times (Sept. 30, 2021) https://www.latimes.com/business/story/2021-09-30/mask-mandate-fury-spurs-delta-share-unruly-passenger-lists#:~:text=Airlines%20are%20debating%20a%20new%20effort%20to%20address,banned%20from%20one%20airline%20from%20flying%20on%20another.

[9] David Shepardson, U.S. Lawmakers Look to Ban Convicted Violent Passengers From Flying, Skift. (March 28, 2023) https://skift.com/2023/03/28/u-s-lawmakers-look-to-ban-convicted-violent-passengers-from-flying/#:~:text=Despite%20the%20end%20of%20the%20airplane%20mask%20mandate,has%20fallen%20sharply%20and%20returned%20to%20pre-Covid%20levels.

[10] Id.

[11] Id.

[12] Mathilde Carlier, Number of U.S. air carriers 1995-2023, Statista (March 31, 2023) https://www.statista.com/statistics/183428/number-of-us-air-carriers-since-1995/.

[13] Hugo Martin, supra, note 8.

[14] Staff Writer, Memos reflect Delta’s commitment to employee and passenger safety, Delta News Hub (Sept. 23, 2021) https://news.delta.com/memos-reflect-deltas-commitment-employee-and-passenger-safety.

[15] Hugo Martin, supra, note 8.

[16] Id.

[17] Hugo Martin, supra, note 8.

[18] Id.

[19] Kendall Morris, Airline workers say unruly passengers are lashing out more. A bill could help curb that, WCNC (April 7, 2022) https://www.wcnc.com/article/news/crime/airplane-passenger-violence-law-travel-crime/275-3f5ce5f5-0329-4dad-9d7d-86380c98170b .

[20] Hugo Martin, supra, note 8.

[21]  Rep. Eric Swalwell, WITH VIOLENT ‘AIR RAGE’ INCIDENTS STILL AT ELEVATED LEVELS, REED, SWALWELL & FITZPATRICK RENEW BIPARTISAN PUSH TO GROUND UNRULY PASSENGERS, Eric Swalwell - U.S. Representative for California's 15th District (March 30, 2023) https://swalwell.house.gov/media-center/press-releases/violent-air-rage-incidents-still-elevated-levels-reed-swalwell.

[22] David Proper, supra, note 6.

[23] H.R. 7433 (117th): Protection from Abusive Passengers Act, GovTrack (April 27, 2022) https://www.govtrack.us/congress/bills/117/hr7433/summary.