Barr Battle Moves into the Courts

 - June 29, 2011, 9:30 AM

Within days of the Department of Transportation’s announcement that it was all but dismantling the Block Aircraft Registration Request Program (Barr), NBAA, AOPA and the Experimental Aircraft Association (EAA) announced they would challenge the decision in court.

“We will continue to fight to preserve the Barr program,” said NBAA president and CEO Ed Bolen after the FAA published a notice in the Federal Register that it planned to restrict the Barr program severely on Aug. 1, 2011. The program provides any person or company using general aviation a means to opt out of having the details of their flight operations broadcast through aircraft situation display to industry (ASDI) data.

That information, which is disseminated to the public through a number of vendors, includes the location, altitude, airspeed, point of origin and destination of both commercial and GA aircraft, identifying them by tail number and detailing their flight plans. The FAA’s new rule would make Barr unavailable to all but a few operators. 

In typical Washington fashion, the DOT waited until 5 p.m. on May 27, the Friday before the long Memorial Day weekend, to publish a notice that it will strictly limit participation in the program. The three associations are seeking an injunction to prevent the decision from taking effect and will ask the courts to invalidate the new policy altogether.

The DOT is requiring applicants who want to participate in Barr to certify that there is a verifiable threat to a person, property or company, including the 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 DOT’s inexplicable decision [May 27] to abandon a widely supported, congressionally enabled policy permitting private citizens to opt out of publicly available flight-tracking applications leaves us no choice but to challenge the move in court,” said NBAA president and CEO Ed Bolen. “The agency appears to have simply ignored the thousands of individuals and companies that voiced their strong and principled opposition to this change.”

Bolen called the move by DOT an alarming development with implications that extend well beyond private aviation. “The government necessarily collects a lot of information about private activities to conduct legitimate governmental functions,” he continued. “This is the first time an agency has claimed the public’s interest in ‘open government’ requires public dissemination to anyone with an Internet connection of wholly personal and private information simply because it happens to be in the government’s possession.”

AOPA president and CEO Craig Fuller agreed. “Common sense dictates that an American citizen using a private aircraft should not have to worry about disclosure to the general public–in direct contravention of the citizen’s expressed wishes–of real-time data regarding the location of the aircraft in flight and its itinerary,” he said. “Anyone with an Internet connection will be able to find out that the person is away from home, or that the individual is conducting business in a particular location. To limit privacy protection only to those who can show a threat of life endangerment simply strains credulity.”

Continuing, Fuller said, “Our associations are committed to doing everything we can to ensure that our members retain the ability to prevent their airplane movements from being tracked by cyber-stalkers, terrorists, criminals, paparazzi, business competitors or others whose motives are unknown.” He further pointed out that air traffic and law enforcement authorities have always enjoyed ready access to general aviation flight information, even with Barr in place, and the associations don’t want that to change. “The reason we’re taking legal action is because we believe getting on an airplane shouldn’t amount to a surrender of a citizen’s basic privacy protections,” Fuller concluded.

EAA president and CEO Rod Hightower said his association believes strongly that the privacy rights of aviators must be equal to those of any other American. “This is an important issue that must be handled appropriately and with due process,” he said. “The disregard of our members’ position by the DOT is an alarming development and seems to be a significant step in removing our privacy rights as aviators and as American citizens. The large majority of our members surveyed expressed the desire to keep Barr in effect as Congress has intended.”

The FAA first proposed the Barr restrictions on March 4. But it appears that the edict came from higher up the federal government ladder than the FAA, with most pointing their fingers at Transportation Secretary Ray LaHood.