by Bob Barr
I love Delta Airlines. It is my true hometown airline and I fly it regularly. If any passenger were to act in a way that endangers the flight, the crew, or other passengers, that person should be held accountable by Delta and by federal law if circumstances warrant. But, please, let’s not create another “No Fly” list.
Currently, the FBI maintains a classified “terror watchlist” containing the names and information for thousands of individuals the government believes pose a potential terror threat.
There is the TSA’s “No-Fly List” that determines who is allowed to board a commercial airplane. The agency also maintains a Secondary Security Screening Selection (SSSS) list that assigns certain passengers for additional screening.
It is no secret that the federal government already maintains a number of “lists” that serve to prevent individuals whose names appear thereon from engaging in what otherwise would be constitutionally guaranteed activities, such as purchasing a firearm or travelling interstate (yes, this has been held by the Supreme Court to be a protected right). We simply do not need another list.
Not that long ago, the private sector maintained a healthy suspicion of government power, and its potential for abuse. The 9/11 terror attacks changed this dynamic significantly, with the private sector cooperating increasingly (and occasionally, unlawfully) with federal officials to achieve the shared goal of keeping America safe.
Today, however, the mentality that the public and private sectors are “partners” is commonplace, and often has less to do with the original intent of preventing terror attacks, and more to do with enlisting Uncle Sam and his federal agents to help private companies do their job (and vice versa).
In fact, running to the feds seems increasingly the default position of private sector leaders faced with policing behavior they find objectionable. Last October, for example, the National School Boards Association begged the Department of Justice to help it control angry parents who were showing up at school board meetings and voicing their objections to policies that affected their children.
In the ongoing COVID pandemic, social media companies use the federal government’s “facts” as unquestionable justification for banning users of their platforms.
Commercial air carriers such as Delta are right to be concerned about the rise in unruly, and at times violent behavior in airplane cabins as well as at airports. The behaviors with which airlines are concerned are but one manifestation of a deeply disturbing trend throughout many sectors of contemporary society, from schools to retail businesses, where disruptive behavior has become a first response to any real or perceived disagreement or “disrespect.”
Commercial air travel is a highly regulated industry, and its leaders must answer to several federal agencies, including the Transportation Department, the Federal Aviation Administration, and the Department of Justice. It is, therefore, important that airlines, including Delta, maintain a close and cooperative relationship with the feds, and to refer cases for federal prosecution whenever facts and circumstances warrant.
Delta and other commercial airline companies have every right to take steps necessary to prevent passengers from using their services if they engage in unruly or unlawful behavior. Airlines can even ban passengers from further flights if they present a real and continuing threat to airline safety.
Airlines must continue to be permitted to exercise broad powers to police passenger behavior, but creating an industry-wide, government-maintained list of “bad” passengers is not necessary, and itself raises serious constitutional issues.
Although sharing “banned-passenger” information between airlines may be considered by the airlines to be acceptable, mandating that every carrier enforce every other carrier’s bans, adds another constitutional wrinkle to the equation, and might itself run afoul of existing federal laws such as those preventing industry collusion.
Moreover, if either the airlines or the administration believes that existing air travel laws need to be in some way strengthened, they have every opportunity to make their case to the Congress. In fact, if the industry truly believes such legislative action is necessary to make the skies safer, they have a responsibility to do ask the Congress to act.
But going down the road of creating another “No Fly List” is neither a good nor a necessary option. It is one that the American people, and particularly those millions who travel regularly by air, should vigorously oppose.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.