On March 4, 2011, the Federal Aviation Administration published its proposal to modify the standard FAA/Subscriber Memorandum of Agreement ("MOA") for Industry Access to Aircraft Situation Display ("ASD") and to National Airspace System Status Information data. The proposed modification would drastically change the existing Block Aircraft Registration Request ("BARR") program, which allows aircraft owners and operators to opt out of public disclosure of flight movement. Under the proposal, anyone wishing to keep the data private would first have to demonstrate a "Valid Security Concern."

ASDI and the BARR Program

Pursuant to the Technology Transfer Act, the FAA makes Traffic Flow Management data, such as filtered ASD data, available to aviation and other industry users. The filtered data (meaning that military and other sensitive operations are excluded) is referred to as ASD to Industry ("ASDI") data, and it includes the near real-time position and other relevant flight data for every civil instrument flight rules aircraft receiving radar services in the National Airspace System. Established in 1997, the ASDI data feed allows individuals to track, in near real-time, the progress of their, or other, aircraft in the system.

In order to subscribe to the ASDI data feed, users must enter into an MOA with the FAA. The MOA sets forth the conditions for access, use, and distribution of ASDI data. Congress directed the FAA to conform the MOA to require that certain users demonstrate the ability to selectively block the display of any data related to a particular registration number. Currently, operators with privacy and/or industrial security concerns can request that their aircraft data be blocked from the ASDI data feed. The National Business Aviation Association ("NBAA") operates the BARR program. Under it, an aircraft owner can submit to NBAA a request to have its aircraft data filtered out of the ASDI data feed. The NBAA compiles the requests and forwards to the FAA a "block list," which contains the aircraft registration numbers to be blocked from the ASDI data feed. The FAA then enters the registration numbers from the block list into its system, and program software filters out those registration numbers from the data feed.

Aircraft Registration Numbers Are Not "Commercial Information"

On December 10, 2008, Pro Publica, a nonprofit news organization, sent a Freedom of Information Act ("FOIA") request to the FAA seeking "all requests to block the public's ability to track an aircraft or flight from ASDI and [Enhanced Traffic Management System] databases since Jan. 1, 2008." The FAA contacted NBAA, administrator of the BARR program, and advised that FAA's initial determination was that the block list information was in fact releasable. NBAA objected on the basis of FOIA Exemption 4. The FAA subsequently determined that the block list information was not protected from disclosure because it was not a trade secret or commercial or financial information as required by Exemption 4 to FOIA

The NBAA sued, in a reverse FOIA action, in federal court to prevent the FAA from releasing a list of blocked aircraft registration numbers. The NBAA argued that the registration numbers were exempt from compelled disclosure by Exemption 4, "which protects information that is '(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential.'" NBAA argued that aircraft registration numbers constitute commercial information because "the information at issue pertains to airplanes used by companies, in commerce, and is thus part of a commercial enterprise. Thus, the underlying information itself is commercial."

Rejecting NBAA's argument, the U.S. District Court for the District of Columbia concluded that "not every bit of information submitted to the government by a commercial entity qualifies for protection under Exemption 4." The court further stated:

"In sum, the release of the registration numbers whose location information was blocked from the ASDI data stream in days and weeks past would enable the recipient to determine the owner of the aircraft, a description of the aircraft, and historical location information. It would not enable the recipient to: (1) determine the identity of the occupants of a particular flight; (2) discover the business purpose of any flight; (3) track the flight in real-time or near real-time; or (4) discern the reasons why the aircraft owner sought to block the flight information from the ASDI data feed."

That aircraft registration numbers might be used to obtain historical location information and that location information might be used for insight into the nature of a company's business dealings do not convert the aircraft registration numbers themselves into commercial information.

Valid Security Concern

Responding to the National Business Aviation Association decision, the FAA is proposing to modify its MOA to make it far more difficult for aircraft owners and operators to protect their aircraft and flight information. In a strained understanding of the court's decision, the FAA contends in its modification proposal that "releasing registration numbers associated with visual displays of flights would not reveal either the identity of the passengers on the aircraft or the purpose of the flight. Accordingly, we do not believe that it is in the public interest to withhold from public disclosure information that is not protected by the Privacy Act and other laws."

The FAA proposes that aircraft owners or operators demonstrate a Valid Security Concern regarding their aircraft or passengers in order to have their aircraft registration numbers blocked from the ASDI data feed. An aircraft owner or operator would have to, at least annually, provide the FAA a written certification (a "Certified Security Concern") that: a) the facts and circumstances establish a Valid Security Concern regarding the security of the owner's or operator's aircraft or passengers; or b) the general aviation aircraft owner or operator satisfies the requirements for a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m), "Employer-provided transportation for security concerns," 26 C.F.R. 1.132-5(m).

A Valid Security Concern is, according to the agency, a verifiable threat to person, property, or company, including a 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. An aircraft owner or operator must be able to demonstrate a specific basis for a security concern and establish that concern to the FAA's satisfaction.

What's Next?

The FAA's proposed MOA modification is ill-conceived, unnecessary, and stretches the logic underlying the National Business court's holding. Aircraft owners and operators have many valid reasons, apart from immediate security threats, for desiring to protect information regarding the whereabouts of their business aircraft. Releasing real-time aircraft tracking information may lead to the discovery of sensitive business transactions, negotiations, or the whereabouts of senior company leadership, all without any countervailing public benefit. The National Business court implicitly acknowledged the sensitivity of this information in its decision. In upholding the FAA's decision to release block list information, the court noted that such information (merely aircraft registration numbers) would "not provide the requester with any real-time or near real-time data regarding aircraft location. A FOIA request takes days or weeks to process."

The FAA's proposed modification would provide ASDI subscribers with real-time or near real-time access to data, which will make it immeasurably easier to determine the identity of the occupants of any particular flight and discover the business purpose of any particular flight. The National Business decision implicitly acknowledges that this information is commercial information, and it is likely protected from disclosure under Exemption 4. The FAA appears to be overstepping its bounds and is opening itself to serious court challenges if it proceeds with its proposed MOA modification.

Interested parties were encouraged to submit comments on the FAA's proposed modification, which had to be received by the FAA on or before April 4, 2011.

In the meantime, Congress is weighing in. A provision in the FAA reauthorization bill (H.R. 658) passed by the House of Representatives on April 1—supported by trade groups representing business aviation and general aviation—would preserve the BARR program and directs the FAA to allow aircraft owners and operators to opt out of having their flight information published by flight-tracking services. This provision would need to be reconciled with the Senate version of the FAA bill before it could become law.