Petition Filed to Protect Air Passengers’ Right to Record

Jul 18, 2017

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Imagine that you negotiated an aircraft swap to get rebooked into a top-notch business class product that you haven’t flown before. Wanting to document the experience, you take a few photos of the amenity kit, entertainment system, meals and your companion — no photos of the crew, safety devices or sensitive equipment. A few hours later, the purser strongly suggests that you might be speaking to the police when you arrive at your destination for taking these photos.

Sounds crazy, but this is the exact situation that happened to TPG’s Editor-In-Chief Zach Honig on an American Airlines flight in 2015. A few months later, I had a similar situation on AA. After taking photos of an empty economy cabin before an international flight, the purser stormed over to tell me that she was throwing me off the flight for violating the airline’s “no photo” policy. Knowing she didn’t have the authority alone to do that, I insisted on speaking with the captain — who ruled that I’d done nothing wrong and dismissed the purser’s complaint.

In both of these situations, American Airlines pursers pointed to the airline’s photography policy as cause. Can you find this policy on AA’s website? Well, no. How about in the Contract of Carriage? Not there either. So, where can you find this policy? For years, it’s been hidden away in the back of AA’s in-flight magazine. In the current version, it’s at the bottom of page 97 under the heading “Flight Mode” — which isn’t likely to be the first place you’d go to look for this information.

AA in-flight magazine re photography

Thankfully, AA has backed off of its strict enforcement of this policy — reports of travelers being harassed by cabin crew for photos have largely dried up. Meanwhile, recent on-board events have demonstrated how on-board recording can provide critical evidence — from a man being bloodied and dragged off a plane to a flight attendant egging on a passenger to fight him. However, American Airlines’ photography policy — and similar policies on other airlines — continue to exist.

DOT Petition

Now, there’s a petition to make these rules a thing of the past. Benjamin Edelman, a Harvard Business School professor, has filed an official Petition for Rulemaking with the Department of Transportation. The petition calls for the DOT to “reject airlines’ improper attempts to prohibit recordings by passengers of events on-board common carriage aircraft and their interactions with staff.”

In the 27-page petition, the petitioner refers to experiences where passengers were harassed, threatened or even assaulted by airline employees for recording situations on-board or in the airport. The petition lays out areas where recording would be in the public interest.

For example, in sworn reports about the Dr. Dao situation, security officers claimed he was “swinging his arms up and down with a closed fist” and “flailing and fighting.” United’s CEO called Dr. Dao “disruptive and belligerent.” Video of the situation revealed a different story.

The petition continues to demonstrate other recording situations which are less consequential, but still important. These include recording airline employees falsely referring to fuel surcharges as “taxes” (which resulted in the DOT fining the airline and filing a cease-and-desist order), airline employees making “false or deceptive statements” about on-board credit card offers or just recording broken seats or equipment — as I did during my recent United situation.

Without recordings, these situations would be the airline or airline employee’s word vs. the passenger’s. Merely based on a passenger’s word, airlines would be unlikely to take disciplinary action against an employee, the DOT is unlikely to take action against an airline and other government agencies wouldn’t be able to act in cases of discrimination.

Based on the above, the petition requests the following:

a. passenger recordings, subject to reasonable conditions, are in the public interest;

b. recordings made to resolve bona fide disputes are presumptively in the public interest;

c. recordings made from a place where a passenger has a right to be, without interfering with airline personnel, are presumptively in the public interest;

d. the mere fact that a recording preserves statements of airline personnel, or shows airline or airport equipment, does not render the recording improper or impermissible.

We ask that the Department issue rules declaring that recordings consistent with [the above] are a passenger’s right and do not violate any statutory or regulatory prohibitions.

We ask that the Department find that recording, in and of itself, does not “intimidate” a crew member within the meaning of 14 CFR 91.11; and to find that recording, in and of itself, does not “assault, threaten, intimidate, or interfere with a crewmember” within the meaning of § 121.580.

The petition continues to request the DOT prevent airlines from establishing policies contrary to the above and prevent airline employees from asserting recording is illegal, removing or forcing a passenger to delete a recording. Finally, the petition asks the DOT to prevent airlines from attempting to enforce rules not contained in the airline’s Conditions of Contract (such as AA’s recording policy).

Airlines Respond

We reached out to American Airlines, Delta, Southwest and United to give them the opportunity to make a statement about this petition and the airline’s right to limit recording.

Both American Airlines and Southwest responded promptly. However, Southwest only took this opportunity to reiterate its policy (which appears in its in-flight magazine):

We understand you may want to document your travel on Southwest Airlines. Want to photograph and/or record Southwest Airlines Customers or Employees? Let them know first! The use of cameras and mobile devices is permitted onboard to capture personal events but can never interfere with the safety of a flight and should always respect others’ privacy.

In response, American Airlines forwarded an internal letter sent to all employees after the stroller incident from late May. Most of the letter focuses on AA’s changes to avoid a United Flight 3411 incident — including pro-employee changes (back-end monitoring to avoid overbooking issues and an employee oversale hotline) and pro-passenger changes (changing its Conditions of Carriage to not remove a paying customer to seat another passenger and beginning a process to “simplify, shorten and revise” the Conditions of Carriage).

However, the AA memo did touch on recording:

Our team will still encounter tense situations from time to time. Of course when videotaping infringes on the safety or security of a flight, we have the right to request that filming stop…But for the more mundane situations where security is not an issue, videotaping is a reality. American has a policy asking customers not to film onboard or at airports, but there is no federal law or regulation that prevents it. Nor will law enforcement require customers to delete photos or videos they’ve taken.

As of this writing, we haven’t received a response from Delta or United. However, we’ll update this article if we receive a response.

If you’re interested in submitting a comment for or against the petition, here’s the link to do so.

Featured image courtesy of Getty Images.

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