Pilot-Counsel: PILOTS AND PRIVACY

December 2020 editorial comment and update: This article first appeared in the January 2006 AOPA PILOT magazine.  Since that time, a form of “insidious encroachment” has continued.  In 2009, as a direct result of the industry outlash the FAA received following the Social Security Administration and FAA matching scheme noted in the article and at least one airman’s litigation, the FAA changed the Privacy Act Statement contained in the FAA Form 8500-8 Application For Airman Medical Certificate.  The application now includes the following additional statement as to how the records may be used: “(f) to disclose information to other Federal agencies for verification of the accuracy or completeness of the information;”.  In effect, the FAA amended the Privacy Act Statement to provide cover for its future matching activities.  Matching activities, which in 2018, culminated in the U.S. District Court in San Francisco indicting four airline pilots for making false statements to the FAA in connection with their answers to medical application question 18y.—they evidently did not report the VA (Veteran’s Affairs) disability benefits that they were receiving.  It could be argued that enforcing compliance by these means is “beneficent” if those targeted are a hazard to aviation, for instance, if an airman doesn’t report a dire medical condition; maybe, so long as no innocents suffer in the process.  Innocents, of course were paramount concern to Sir William Blackstone in his (1765) quote, “Better that ten guilty persons escape than that one innocent suffer.”
 
Flight tracking and ADS-B technology have also created privacy issue for pilots. Although there are certain measures available to restrict the availability of identifying details, they are not all full proof.  The recently launched FAA Limiting Aircraft Data Display Program (LADD) can be employed to block public access to flight data, but it doesn’t block access from private ADS-B receivers, for instance.  FAA Private ICAO Address Program (PIA) is another new program that provides an alternate, temporary ICAO address not tied to the owner in the Civil Aviation Registry.  Providing more program detail and assessing the effectiveness of these programs is beyond the scope of this editorial update.  Suffice it to say, if you’re concerned about someone knowing who you are and where you’re going while in flight, there are multiple resources, including FAA.gov, to explore and learn more about the program options available.  

United States Supreme Court Justice Brandeis, writing in 1928, even before the FAA was born, gave us this farsighted warning:
 
"Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
 
The “insidious encroachment” for beneficent purposes that is now dawning on me is the computer matching of the FAA airman records with the computer records of other federal and state agencies, which should not be happening, and the potential misuse of social security numbers that airmen are voluntarily giving to the FAA. 
 
The best expression of my growing concern are the findings made by Congress when it enacted the Privacy Act, as these findings are set out in a leading Administrative Law treatise on the subject.  Congress found that “(1) individual privacy is directly affected by the collection, use and maintenance of information by the Federal Government; (2) increasing use of computers and other modern forms of information storage and retrieval greatly increases the probability of harm to the individual’s right of privacy; (3) misuse of such information systems can affect the individual in every facet of life; (4) the right to privacy is guaranteed by the Constitution of the United States; and (5) in order to protect this right, legislation is needed to regulate systems of records maintained by Federal agencies.”
 
Before getting to current events, I must observe that the “encroachments” of pilots’ privacy have been “insidious,” just as Justice Brandeis warned.  Here is one that has been irritating me for a long time.  It is so “insidious” that most airmen no longer notice it.  In 1991 the FAA changed the medical application form to include an “express consent” provision to access an airman’s motor vehicle driving record.  FAA did so in order to avoid the privacy restrictions of the National Driver Registration Act as well as the Privacy Act.  Without an airman’s express consent (it must be signed), the FAA and the National Driver Register would be unable to run a computer match, as they do, on every FAA medical certificate applicant against the National Driver Registry and the States’ driving records.  Of course, the “consent” is a fiction.  It is not at all voluntary.  If an airman does not consent (sign the application), the airman does not get a medical certificate.  Period.  What is the beneficent purpose?  The FAA uses the match information to determine if an airman has falsified his or her driving record on the medical application, or if there are enough driving infractions to suspend 

​or revoke the airman’s FAA certificates.  Query: Is that worth the violation of the spirit if not the actual wording of the Privacy Act?  Do you notice anymore?  Is that “insidious?”
 
Here is a more current example.  Beginning in July of 2003, the Department of Transportation (that includes the FAA) and the Social Security Administration initiated a joint effort to identify the misuse of Social Security numbers by pilots.  Somehow that effort got derailed into a record matching that identified a number of pilots with current medical certificates who were receiving Social Security disability benefits (an obvious “beneficent purpose”).  They then narrowed their review to the 40,000 pilots residing in the northern half of California (that’s probably all if not most of them), identified 3,220 who were collecting benefits (some disability benefits), and then selected the 45 worst cases for criminal prosecution.  In 14 cases the FAA issued emergency orders immediately revoking their pilots licenses and medical certificates.  As best as we can tell, the 40,000 pilots (overwhelmingly innocent and law abiding) were not notified that their FAA records were being computer matched against Social Security computer records.
 
That may not be the end of it.  The DOT Inspector General has indicated, “As the results of this initiative involve only a portion of certificated pilots in California, it is important that FAA take steps to proactively identify and address similar falsifications occurring elsewhere across the greater community of certificated pilots. We recommend that FAA, working with SSA and the other disability benefit providers, expedite development and implementation of a strategy to carry out these checks and take appropriate certificate enforcement action where falsification is found.  We would be pleased to assist FAA in exploring options for accomplishing this, to include database matching with record systems of the disability providers.” 
 
So, we may see more computer matching of our information on the FAA databases with other government databases.  Where will it end?  As the scope widens, the “beneficent” purposes likely will narrow and become more arguable.  Our privacy is being chipped away by inches, insidiously.
 
I must be clear that what I am talking about is only government computer matching, to which the Privacy Act is directed.  Names, addresses, and certification of pilots on the FAA list are public information (unless a pilot opts out).  Any member of the public is entitled to this public information and many use it for computer-matching purposes.  That is a separate matter.
 
It occurs to me that we pilots, in a spirit of cooperation, are unwittingly giving the FAA more ammunition than it is entitled to, to facilitate any future such efforts that may have more arguable “beneficent” purposes.  An individual’s social security number is the ideal identifier for computer matching.  The Privacy Act Statement on the Application For Airman Medical Certificate, required by the Privacy Act, tells us “Submission of your SSN is not required by law and is voluntary.  Refusal to furnish your SSN will not result in the denial of any right, benefit, or privilege provided by law.”  Why do most pilots voluntarily give their social security number?  Why are we doing it?  Probably because this trend has been so insidious, though many may be conscientiously doing it with full knowledge of what they are doing.  I respect that.  I, for one, am writing to the Secretary of the Department of Transportation, ultimately in charge of the records, asking him to remove my social security number from my FAA records.  And, I won’t be furnishing it in any future applications to the FAA.  This dangerous trend to the invasion of pilots’ privacy rights bears watching.  If the FAA has lost control, it shouldn’t be the keeper of important information that other agencies have a mandate to keep private.
 
One last word--while the FAA appears to be the culprit, reading between the lines, I get the feeling that the FAA is being forced into it, as it has been forced to front for the airspace and airport restrictions imposed on pilots since the September 11, 2001, terrorist bombings. 
 
 
 
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John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com