JamesBigglesworth

It's silent on it, so your point is a wash IMO. If it's silent then we can equally assume that it applies as broadly as possible unless restricted by some other law or regulation. So yes, it applies to personal aviation. And commercial. And whatever else there might be out there.

A rational reading of it would say that a commercial flight is an offering of a flight under conditions (eg. paying a specified & agreed fare, showing up at the agreed time, following the T&C the offerer specifies, etc) and that so long as a person agrees to those limitations then they have a right to fly on that flight. That's not saying it is an obligation imposed on the *carrier* to allow the flier to fly. That part is simply a contract, pure and simple. I would say it's a right that the flier has in relation to any third parties to the flier-carrier contract, eg. the government intervening; the flier has a right to fly and any third party must overcome that right.

Collierkr

ethernal

That was my point. Imagine if there was a "no drive list" arbitrarily created without due process that prohibited people from getting a license despite passing all of the requirements to get one. I expect people would be up and arms about that. And this is even worse than that, because driving is closer to a privilege than flying as a passenger is.

saizai

No, it isn't. The original text is in the Federal Aviation Act of 1958, Pub. L. 85-726 § 194, 72 Stat. 740:

"PUBLIC RIGHT OF TRANSIT SEC, 104. There is hereby recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States."

(§ 101(24) defines "Navigable airspace" as "airspace above the minimum altitudes of flight prescribed by regulations issued under this Act, and shall include airspace needed to insure safety in take-off and landing of aircraft.")



The disability part was added almost 30 years later, in the Civil Aeronautics Board Sunset Act of 1984, Pub. L. 98–443, § 14, 98 Stat. 1711:

"SEC. 14. Section 104 is amended by adding at the end thereof the following new sentence: "In the furtherance of such right, the Board or the Secretary, as the case may be, shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973, prior to issuing or amending any order, rule, regulation, or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped persons."."

nachtnebel

Thanks for posting this Sai. Since rights aren't conveyed by government but are inherent rights, the government can't "rescind" the right later on.

So where did TSA spokespeople get off asserting there was no right to fly back when the current scope and grope regime was launched, in 2010?

saizai

As a general matter, that's not true. Rights can be inherent, treaty, constitutional, statutory, contractual, etc. So, yes, Congress can grant and take away some rights (ones that you wouldn't have but for the statute that gives it). For instance, the right to sue the United States under the FTCA is purely statutory, since it has sovereign immunity by default.

However, this particular phrasing ("recognized") seems like an expression that Congress thought this was an existing right, rather than one granted by this statute.

There've been several cases having to do with the constitutional right of freedom of movement not necessarily meaning right to transit by a specific method. (E.g. driving a car is not a right. I suspect that being a passenger in a car is, but I'm not aware of any case law on that. (And being a passenger not wearing a seatbelt is not.))

I don't know of any such cases that considered this provision, though.

saizai

I did a quick search of case law. As far as I can tell, the only cases talking about the "public right of freedom of transit through the navigable airspace" use it for:

1. rejecting landowner rights (easement, trespass, etc) to that airspace,
2. rejecting state/local laws that would interfere with federal aviation, or
3. assuming a remedy for people denied transport or equal treatment by public carrier airlines.

I found nothing interpreting it in a case against a federal regulation.

84fiero

No, I'm not. You'd be guilty of inciting panic, creating a disturbance, or some such similar law. If you claimed "I have a right to free speech therefore I'm innocent" - you'd lose because the right is not absolute. It's precisely because of consequences or certain actions/omissions that there are limitations to most rights (or at least, that should be the rationale). No one will limit my ability to go around saying "blue is an ugly color" because no one is potentially harmed by it.

What right is there that no one can potentially stop you from engaging in? None. That doesn't necessarily make it "not a right". Whether the right derives from a constitution, a statute, theory of natural law, or whatever, is another discussion but is also relevant.

Collierkr

saizai

The only "qualification" stated in the section quoted is US citizenship. The end.

And not just "access", but "transit".


As for interpretation, see e.g. Mortimer v. Delta Air Lines, 302 F. Supp. 276 (N.D. Ill. 1969):

"The Wills case was substantially the same as the present case. There the plaintiff, holding confirmed second class reservations, was barred from the flight in order to accommodate an excess of first class passengers. The court allowed recovery of compensatory and punitive damages.

In both Fitzgerald and Wills the basis for allowing recovery was that the Act established a public interest and right to non-discriminatory and fair treatment by air carriers and that in the absence of a civil remedy past injuries caused by violation of that right would go uncompensated."

Commercial flights also fall under common carrier type rules, so it's not purely based on this. And Mortimer is more based on 49 U.S.C. § 1374(b), which AFAICT has been moved to 49 U.S. Code § 41310(a), "An air carrier or foreign air carrier may not subject a person, place, port, or type of traffic in foreign air transportation to unreasonable discrimination."

… which is basically what I said in my summary.

studentff

I honestly wonder if the people who architected DHS/TSA went over to the former East Germany (or USSR) to study the archives and literature on how to implement internal passports, travel permissions, etc. The current TSA system must be the ultimate fantasy of these people: everybody has to request and be granted permission to fly commercial but because it is all electronic and the (perceived) default answer to a permission request is yes, the people are ignorant of the system's existence. All it would take is one administration to change the "default" from yes to no, and the infrastructure is already in place to severely curtail travel.

Sure they could; under your logic the government could simply implement a regulation saying you have to check in advance with an agency before leaving the ground by more than a foot and require smartphones to be always on and to report to the government any excursion above ground level. We're closer to that technology today than East Germany was in the 1980s. The East German government could never have imagined the ubiquitous computers and computer networks that enable what DHS/TSA is doing today.

That's a big part of what's scary about the past 17 years. I'm pretty confident that if the teacher in my middle school or high school civics/government class (1980s - 1990s) put a question about the no-fly list on the final (regarding preventing US citizens from flying commercial with no conviction, no charge, no probable cause, no reasonable suspicion, and no effective means of appealing the prevention), that every student who passed the class would have answered "unconstitutional" I don't think it would have been a topic for debate any more than we would debate if the sun rises in the East. I doubt the students or teachers -- liberal or conservative -- could have come up with a scenario that would justify it being constitutional. So much of this stuff is just obviously wrong, yet people put up with it.

saizai

That happened in 2008. Now, in the US, the default is no.

49 CFR 1560.105(b):

"Watch list matching results. … a covered aircraft operator must not issue a boarding pass or other authorization to enter a sterile area to a passenger or a non-traveling individual, and must not allow that individual to board an aircraft or enter a sterile area, until TSA informs the covered aircraft operator of the results of watch list matching for that passenger or non-traveling individual …"

studentff

But I still think the default answer to the blacklist check is "ok to pass." The distinction to me is blacklist vs whitelist. In other words, they deny travel if you match the blacklist but by default allow travel for non-matches which might include people who have no record in the "system" at all. At least to me, a default of "no" would mean the government maintained a whitelist of approved travelers and only granted "ok to pass" to a positive match to the (approved) whitelist.

They do seem to be starting to check if the ID you present is valid, which is a step toward default of "no."

Where this gets interesting is if the government starts saying "no" to people who have no record in the ID system. Their whole scheme for identifying someone with no ID (asking questions from commercial databases) already completely falls apart for someone who has no financial history and no ID; I suspect such a person, even one who had done nothing suspicious such as an 18-year-old who had no need for a driver's license, would be denied travel.

Once "real ID" is fully implemented ( ) and if DHS could get their act together enough to create a database of non-citizens authorized to be in the country, TSA could start deying travel to anyone who fails to positively match the population of real-ID holders and authorized visitors. They could even punish travelers who defy TSA by removing their names from the whitelist.

Katamarino

We're already there, especially for private flyers. From 2020 every aircraft must carry a beacon broadcasting its identity and position openly, which is then received by ground stations and published freely on the internet. The FAA also illegally publishes an open database of the name and address of every registered aircraft owner to match that against.

It's the same as if the government mandated a GPS tracker on every car, and you could then log on to a website and track where anyone you wanted was at any time. You know whenever someone is away, in case you want to burglarize their home for example. The lack of outcry is only because so few people fly as compared to drive.

Check out the ADS-B mandate for all the specifics.

scolbath

I'd like to see some backup to your assertion that publication of the aircraft registration database is in some way illegal.
ADS data can be blocked from internet-sourced services by any aircraft owner. Of course, you are free to set up your own private ADS-B receiver, but similarly you are also free to sit and listen to air traffic control direct any given plane.
That being said, there are already services which employ license plate scanners to track ground-based vehicles with mixed granularity. These are a much greater threat to overall privacy than most any scenario involving planes for all the reasons you outline. But the similarities are certainly there.