Oct 18 2010

Airlines to cancel reservations and deny passage to travelers who won’t provide “Secure Flight” info

Airlines are moving rapidly toward global industry standards, effective November 1, 2010, that could lead to cancellation of reservations — including already ticketed reservations — without notice to travelers and in violation of the contractual conditions in effect when tickets were sold, and denial of transportation to would-be passengers in violation of airlines’ operating licenses and international aviation treaties that require them to operate as “common carriers”.

We’ve previously noted the impossibility of knowing how the TSA will enforce its Secure Flight passenger surveillance and control scheme, since the enforcement of “Secure Flight” demands for information will, presumably, be carried by airlines acting on secret TSA Security Directives.  And in one of their most recent non-responses to our FOIA requests, the TSA reiterates their claim that all such Security Directives are by definition exempt from disclosure, regardless of whether their disclosure would have any actual effect on safety or security.

But we’ve also noted the recent announcements by some airlines, apparently starting with American,  that they plan to cancel or inhibit the creation or ticketing of reservations that don’t contain the additional personal information that the TSA wants each traveler to provide to both the airline (who is free to retain, use, sell, or otherwise disclose it) and the TSA: “full name” (whatever that means — there’s no definition in the Secure Flight regulations), gender, and date of birth.

Now airlines are going even further, with more airlines announcing their intent to cancel ticketed reservations if passengers don’t, on their own initiative, come forward with Secure Flight passenger Data (SFPD), and the airline trade association (and sometimes cartel) IATA reportedly expected to pass a global standard this week mandating inhibition of ticketing of all reservations without SFPD.

IATA says of Secure Flight that “DHS is simply asking for too much information too frequently on airline passengers.”  And airlines risk huge liability and loss of their operating licenses if they refuse to transport qualified passengers. But rather than even trying to challenge the TSA’s illegal orders, IATA’s member airlines are becoming the TSA’s accomplices in surveillance, control of movement, and facilitation of identity theft — in exchange for the “free ride” airlines are getting to use SFPD for their own entirely unregulated purposes.

Anticipating the IATA decision, American and Delta have already added near-identical clauses, of dubious validity, to their conditions of carriage, with American saying that, “American may cancel your reservation if the reservation does not include the required Secure Flight Passenger Data (full name, date of birth and gender) at least 72 hours prior to your scheduled departure.”  It remains to be seen whether United or other airlines will follow suit.  Lufthansa has announced a similar policy, worth reading for its details about the data entry formats for SFPD in the major computerized reservation systems,  but apparently without actually incorporating it in its contractual terms.

By far the worst and and most obviously illegal conditions of carriage we’ve seen published by an airline serving the U.S. are those from Emirates. Section 7.1 of Emirates’ terms appears to ignore completely their obligations as a common carrier (and of due diligence), with Section 7.1.21 appearing to claim a completely discretionary “right to refuse service to anyone” by prior notice. Section 10.5.4 provides that no refund will be given in any such circumstances. See also Section 13 on travel documents and searches, and the extraordinarily broad authority for data mining and other use of personal data about passengers claimed in Section 5.3.

The most serious problems will occur with passengers who bought tickets month ago, who may already be traveling and who are under no obligation to maintain current on-the-road contact information with the airlines or to reconfirm their flight until 72 hours before the scheduled departure time (or until check-in, in the case of airlines that have formally repealed their reconfirmation requirements). Even if they might be willing to provide SFPD, their reservations may be canceled long before they find out about the change in terms. And if they are traveling at peak times when all flights are fully booked if not overbooked — especially on long-haul flights over the Christmas/New Year holiday period — it wouldn’t be unusual for an airline to be unable to re-accommodate them, once their reservations are cancelled, until as much as a week or two after their ticketed travel date.

Canceling these reservations is a clear-cut violation of the contractual terms on which tickets were sold and issued, and airlines are playing with fire in choosing to assume this liability.

Online trade journal Management.Travel reports that a proposed IATA standard “did not receive the required consensus among International Air Transport Association members and rather than being a mandate has been considered a recommended practice, according to an IATA official,” and therefore “needs to go up for a full vote during an IATA conference scheduled for Oct. 21-22.” It’s unclear whether the lack of consensus came from concerns about the cost to airlines and their agents of implementing global technical and business-process changes to accommodate the peculiar US national demands, or from concern about liability to those denied passage — especially in countries where, unlike in the US, violations of international human rights and “common carrier” aviation treaties could provide a private right of action.

[Update: Apparently some airlines have already forgotten their obligations as common carriers, according to an article on MSNBC.com about “Secure Flight” and no-fly lists: “American Airlines’ employees can ‘deny the boarding of a customer who has had a prior issue with the airline,’ said spokesperson Billy Sanez. ‘That is no different than anybody doing commerce. Say you own a flower shop and somebody is being disruptive in the shop — you don’t have sell to somebody who is being disruptive.” But of course a common carrier is, by law, very different from anybody doing commerce.]