Are We Entering a No-Fly Zone with the Expansion of the No-Fly List?

Before the 9/11 terrorist attacks, there were only 12 people on the No-Fly Lists.^[1] After 9/11, the newly formed Transportation Security Administration (“T.S.A.”) took over aviation security from the Federal Aviation Administration.^[2] In September 2011, ten years after 9/11, there were approximately 420,000 individuals on the Terrorist Watchlist, with 32,000 of those individuals on either the No-Fly List or Selectee List.^[3] Now, the Chief Executive of Delta, Ed Bastian, asks for another significant alteration to the No-Fly List – to include unruly passengers.^[4] With the No-Fly List returning to the news, lawmakers and advocates who agree with Mr. Bastian must look at the troubled history of the No-Fly List. Both the human rights and procedural due process implications of the No-Fly List demonstrate that the expansion of the List will only magnify these violations.

Historical Background of No-Fly Lists:

The Aviation and Transportation Security Act of 2001created the T.S.A.^[5] The act charged the T.S.A. with “ensuring the security of all modes of transportation, including civil aviation.”^[6] Within that responsibility, the T.S.A. runs the No-Fly List, placing individuals on the list if they “pose a threat to aviation safety.”^[7] The Aviation and Transportation Security Act of 2001 gave the T.S.A. broad powers to “identify and counteract potential threats of terrorism and risks to airline safety.”^[8]

However, in 2003, President Bush altered the process, calling for a consolidation of the government’s approach to terrorism screenings. ^[9] Under this directive, Attorney General John Ashcroft created the Terrorist Screening Center, which is tasked with maintaining the Terrorist Screening Database.^[10] The Terrorist Screening Database contains “information about individuals who are known or suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism or terrorist activities.”^[11] The Terrorist Screening Center evaluates nominations to the list from the Federal Bureau of Investigation (“F.B.I.”) and National Counter-Terrorism Center.^[12]

The F.B.I. and the National Counter-Terrorism Center may nominate individuals to be included in the list if they have a reasonable suspicion.^[13] The Terrorist Screening Center “then evaluates the nominations for completeness and accuracy, and, if appropriate, places the individuals on the T.S.D.B. [Terrorist Screening Database].”^[14] Within the Terrorist Screening Database is a subsection which includes the No-Fly List and Selectee List. The No-Fly List is a list of individuals who are prohibited from flying.^[15] The Selectee List is a “list of individuals who must undergo additional security screening before being permitted to board an aircraft.”^[16] While being placed on a watch list may not sound like a serious matter, these restrictions on freedom of movement can have numerous consequences on an individual’s life.

Consequences of Being Placed on the No-Fly List:

When an individual is placed on the No-Fly List, they are prohibited from “flying to, from, or over U.S. territory.”^[17] While the need for air travel may seem minor, the consequences of being unable to fly can be monumental. According to Article 13 of the Universal Declaration of Human Rights, “everyone has the right to freedom of movement and residence within the borders of each state.” Article 13 further outlines that, “everyone has the right to leave any country, including his own, and to return to his country.”^[18] Movement is a human right, and while traveling via other means is still available to people on these lists, at times, other methods of travel are impractical.

Firstly, in some places, such as Alaska, Hawaii, and Puerto Rico, intra-state and inter-state travel may be impossible without the ability to fly. Secondly, in a fast-paced society, “air transportation is the only ‘practicable’ route of travel if one is to participate in society.”^[19] In U.S. v. Albarado, the court noted that “it would work a considerable hardship on many air travelers to be forced to utilize an alternate form of transportation, assuming one exists at all.”^[20] Further, while the reason for travel should be irrelevant, many people travel for reasons other than pleasure, including a need to quickly travel for “the birth of a child, the death of a loved one, a business opportunity, or religious obligation.”^[21] Therefore, a denial of the right to air travel, implicates not only the freedom of movement, but also the right to observe one’s religion^[22], and access to adequate medical care.^[23]

When an individual is placed on the Selectee List, prior to their flight they are subjected to “additional question, inspection, and screening before being allowed to board flights to, from, or over U.S. territory.”^[24] While not all individuals on the Selectee List are not explicitly denied the right to air travel, they must go through additional security screening to be permitted to board, which can be a humiliating process.^[25] Denial of air travel is a deprivation of a liberty interest and therefore there must be a redress program.

Availability of Redress Programs:

Prior to 9/11, the 9^th Circuit noted that the Supreme Court has continuously recognized “the right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under Fifth Amendment.”^[26] The court went on further to note that “under no circumstances has the Supreme Court permitted a state to deprive a person of a life, liberty, or property interest under the Due Process Clause without a hearing whatsoever.”^[27]

Due to this right, the Intelligence Reform and Terrorism Prevention Act of 2004 and the Implementing Recommendations of the 9/11 Act of 2007 required the Department of Homeland Security (D.H.S.) and T.S.A. “to provide a means of redress for impacted passengers.”^[28] The redress program currently in use is the D.H.S. Traveler Redress Inquiry Program (T.R.I.P.).^[29] T.R.I.P. is “a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs – like airports – or crossing U.S. borders.”^[30] This program has been continuously criticized and challenged by the American Civil Liberties Union (A.C.L.U.) for being “utterly inadequate.”^[31]

After being watchlisted, travelers may file an inquiry through T.R.I.P.^[32] If the inquiry is related to the Terrorist Screening Database, it is referred to the Terror Screening Center.^[33] After determining the traveler is indeed on the list, the inquiry is sent to the agency that placed the individual on the list.^[34] That agency then sends a letter that explains whether “corrections or changes are warranted at this time.”^[35] Watchlisted individuals “have a statutory right to have D.H.S. T.R.I.P. determination reviewed by the federal court of appeals,” however the review is based on agency records which the watchlisted person lacks access.^[36] Without having the reasoning behind being placed on a watchlist or agency records to discover the reasoning, adequate challenges are unavailable.^[37]

Additions to the No-Fly List?

The No-Fly List has generally been reserved for people who “are ‘known terrorists’ or are reasonably suspected of involvement in terrorist activities.”^[38] However, in February of 2022, Delta C.E.O. Ed Bastian has asked to expand a subset of the No-Fly List “to include people who have been convicted of federal charges related to onboard disruption.”^[39] The call comes in the wake of a drastic spike of both incidents and investigations of unruly passengers on airplanes. This past year, there were 5,891 reports of unruly passengers, and 1,099 investigations initiated, up from 183 in 2020.^[40] Of the 5,891 reports of last year, “72% were related to masks.” ^[41]While the violent onboard disruptions are concerning, groups like the A.C.L.U. say that expanding the deeply flawed No-Fly List “should be a non-starter.”^[42] However, other stakeholders, including union leaders in the airline industry, vocally support these actions to protect their members.^[43]

The A.C.L.U. points to numerous reasons as to why the list should not be expanded. First, and most importantly, the No-Fly List is “a civil liberties nightmare,” as indicated above.^[44] Secondly, the A.C.L.U. points to the politicization of mask-wearing, which has caused many to reject masks as useless, and therefore “being forced to do so is an incursion on personal freedom, [and] has led to many incidents.”^[45] The group further notes the general stress caused by the pandemic which has led to an increase in “free-floating hostility within the American population”^[46] Finally, the A.C.L.U. contends that the core business model of airline companies is to make airplanes uncomfortable, sell minor amenities and feelings of superiority to individuals, and “if Congress wants to address bad behavior on aircraft, one thing it could do is take steps to make flying less miserable.”^[47]

On the other side, many flight attendants are exhausted from being on the receiving end of this anger. Flight attendants are being insulted and threatened for doing their jobs. Further, “in addition to the ongoing abuse, flight attendants also fear for increased health risks to passengers – and to themselves.”^[48] The President of the Association Flight Attendant – C.W.A.^[49], commenting on a survey which indicated that 58% of flight attendants experienced five incidents this year, stated “the vitriol, verbal and physical abuse from a small group of passengers is completely out of control, and is putting other passengers and flight crew at risk”^[50]

If a new list was created for unruly passengers, as iterated by Delta’s C.E.O., there would be both similar and different implications from the current No-Fly List. First, again there are human rights and due process concerns. Some proposals include adding “only those who have been convicted in court for breaking the law with their behavior on airplanes.”^[51] This approach would remove some due process barriers, including giving notice of the crime and having access to government information relating to the claim.^[52] However, questions remain over the logistics of the list, including deciding how long someone is on the list and how someone can get off the list.^[53] Further, the No-Fly List simply creates another penalty for an already illegal act.^[54]

While protection of flight attendants must be a priority, the solution should not be to “introduce new injustices to American life.”^[55] One possible alternative is to give judges the discretion to add an individual to the No-Fly List. This would enable judges to “take into account particularities of each person’s situation and choose the punishment that fits.”^[56] However, this solution simply gives the criminal justice system another tool to punish people, when mechanisms such as fines and criminal charges are already available.^[57] Finally, another alternative could lie within airlines themselves, including banning alcohol and reducing the discomfort of passengers on flights.^[58] Ultimately, the solution must not be to drastically increase the number of people on the current No-Fly List, as such a solution would only perpetuate human rights and civil liberties violations.

1. Eric Hedlund, Good Intentions, Bad Results, and Ineffective Redress: The Story of the No Fly and Selectee Lists and a Suggestion for Change, 79 J. Air L. & Com. 597 (2014) https://scholar.smu.edu/jalc/vol79/iss3/3. ↑
2. Id. ↑
3. Terrorist Screening Center, Ten Years After: The FBI Since 9/11, Federal Bureau of Investigation, https://archives.fbi.gov/archives/about-us/ten-years-after-the-fbi-since-9-11/just-the-facts-1/terrorist-screening-center-1 (last visited Mar. 14, 2022). ↑
4. Niraj Chokshi, Delta’s chief executive asks U.S. to bar unruly passengers from flying, N.Y. Times (Feb. 4, 2022), https://www.nytimes.com/2022/02/04/business/delta-unruly-passengers-no-fly-list.html. ↑
5. Congressional Research Service, Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issues, (update July 27, 2016), https://crsreports.congress.gov/product/pdf/R/R43730/8. ↑
6. Id. ↑
7. Id. ↑
8. Hedlund, supra note 1. ↑
9. Id. ↑
10. Id. ↑
11. Id. ↑
12. Id. ↑
13. Id. ↑
14. Id. ↑
15. U.S. Department of Homeland Security, Report on Effects on Privacy & Civil Liberties (Apr. 27, 2006), https://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_nofly.pdf; United States Government Accountability Office, Terrorist Watchlist: Routinely Assessing Impacts of Agency Actions since the December 25, 2009, Attempted Attack Could Help Inform Future Efforts, (May 2012), https://www.gao.gov/assets/gao-12-476.pdf. To meet the reasonable suspicion standard the agency shall, “consider the totality of information available that, taken together with rational inferences from that information, reasonably warrants a determination that an individual is known or suspected to be or have been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to terrorism or terrorist activities” ↑
16. Id. ↑
17. American Civil Liberties Union, U.S. Government Watchlisting: Unfair Process and Devastating Consequences, (Mar. 2014), https://www.aclu.org/sites/default/files/assets/watchlist_briefing_paper_v3.pdf. ↑
18. Universal Declaration of Human Rights, United Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Mar. 14, 2022). ↑
19. Lindsay Ray Altmeyer, Freedom to Fly: An Analysis of the Constitutional Right to Air Travel, 80 J. Air L. & Com. 719 (2015) https://scholar.smu.edu/jac/vol80/iss4/4. ↑
20. Id. ↑
21. Id. ↑
22. Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at Art. 18 (1948). Under Article 18 of the Universal Declaration of Human rights, “everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to…manifest his religion or belief in teaching, practice, worship and observance” ↑
23. Id. at Art. 25. Under Article 25 of the Universal Declaration of Human Rights, “everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing, and medical care…” ↑
24. American Civil Liberties Union, supra note 17. ↑
25. U.S. Department of Homeland Security, supra note 15; See also Jen Sorensen, Grounded: Life on the No Fly List, American Civil Liberties union, https://www.aclu.org/issues/national-security/grounded-life-no-fly-list (last visited Mar. 14, 2022). ↑
26. DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992) quoting Kent v. Dulles. ↑
27. Id. ↑
28. Hedlund, supra note 1. ↑
29. D.H.S. Traveler Redress Inquiry Program, Transportation Security Administration, https://www.tsa.gov/travel/passenger-support/travel-redress-program (last visited Mar. 14, 2022). ↑
30. Id. ↑
31. American Civil Liberties Union, supra note 17. ↑
32. Id. ↑
33. Id. ↑
34. Id. ↑
35. Id. ↑
36. Id. ↑
37. Hina Shamsi, The Government Is Blacklisting People Based on Predictions of Future Crimes, American Civil LIberties Union (Oct. 8, 2018), https://www.aclu.org/blog/national-security/discriminatory-profiling/government-blacklisting-people-based-predictions. ↑
38. Hannah Sampson, The ‘no-fly’ list and unruly passengers, explained, The Washington Post (Feb. 10, 2022), https://www.washingtonpost.com/travel/2022/02/10/no-fly-list-delta-ceo/. ↑
39. Id. ↑
40. Mary Schlangenstein & Alan Levin, No-Fly List Talks Intensify in U.S. on Surge in Violent Incidents, Bloomberg (Feb. 14, 2022), https://www.bloomberg.com/news/articles/2022-02-14/unruly-travelers-push-u-s-airlines-agencies-toward-no-fly-list; see also Unruly Passengers, Federal Aviation Administration (Mar. 7, 2022), https://www.faa.gov/data_research/passengers_cargo/unruly_passengers/. ↑
41. Schlangenstein, supra note 40. ↑
42. Jay Stanley, Airlines Want the Government to Create a New Passenger No-Fly List, American Civil Liberties Union (Feb. 9, 2022), https://www.aclu.org/news/civil-liberties/airlines-want-the-government-to-create-a-new-passenger-no-fly-list. ↑
43. Sampson, supra note 38. ↑
44. Stanley, supra note 42. ↑
45. Id. ↑
46. Id. ↑
47. Id. ↑
48. Jade Lawson & Nam Cho, After increase in assaults, flight attendants are saying enough is enough, ABC News (Dec. 10, 2021), https://abcnews.go.com/US/flight-attendants-nearing-breaking-point-job-manage/story?id=81625829#:~:text=About%2085%25%20of%20nearly%205%2C000,%2DCWA%2C%20AFL%2DCIO ↑
49. About the Association of Flight Attendants, Association of Flight Attendants-CWA, AFL-CIO, https://unitedafa.org/afa/about/ (Last visited March 19, 2022); The Association of Flight Attendants is a part of the Communications Workers of America (C.W.A.) ↑
50. Jack Kelly, Airlines Left Flight Attendants To Deal With Rowdy, Violent, Drunk And Abusive Passengers, Forbes (Nov. 16, 2021), https://www.forbes.com/sites/jackkelly/2021/11/16/airlines-left-flight-attendants-to-deal-with-rowdy-violent-drunk-and-abusive-passengers/?sh=1d1496f31b67. ↑
51. Stanley, supra note 42. ↑
52. Id. ↑
53. Id. ↑
54. Id. ↑
55. Id. ↑
56. Id. ↑
57. Sampson, supra note 38. ↑
58. Pete Muntean & Gregory Wallace, American Airlines will not serve alcohol on flights until 2022, CNN (Aug. 19, 2021), https://www.cnn.com/travel/article/american-airlines-no-alcohol-until-2022/index.html; see also Stanley supra note 42. ↑