[IP] Suits Against Airline Put Focus on Privacy Concerns
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Date: Thu, 22 Jan 2004 14:44:11 -0500 (EST)
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Subject: NYTimes.com Article: Suits Against Airline Put Focus on Privacy
Concerns
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Suits Against Airline Put Focus on Privacy Concerns
January 22, 2004
By TERENCE NEILAN
Growing concern over the privacy rights of American
travelers in the face of heightened national security has
come into sharper focus this week as lawyers pursue cases
against Northwest Airlines for handing over passenger
information to the government.
One case, a class-action suit, seeks damages from the
carrier for possibly millions of passengers. A separate
complaint calls on the Transportation Department to
investigate what it calls Northwest's "unfair and deceptive
practice" of giving information to the National Aeronautics
and Space Administration, which it says caused "substantial
injury to consumers." It also seeks an order for Northwest
to notify all affected passengers and says civil penalties
might be appropriate.
A spokesman for Northwest, Kurt Ebenhoch, said that privacy
rights would be discussed today at a regular meeting of the
Air Transport Association in Washington. The airline said
that although it believed it would still be appropriate to
hand over passenger data to the government "to advance
aviation security," it felt that a protection protocol
should be set up to address privacy concerns.
It said in a statement its current policy was not to
provide passenger data for use in aviation security
research projects. But it added that it would provide such
information to federal agencies if required to do so by
law.
An independent law professor said today that he thought the
law firm bringing the class-action suit would have a very
difficult time establishing a right to a remedy under
American privacy law.
"As egregious as this violation was there is no clear legal
right to information privacy under American law," said
Prof. Joel Reidenberg of Fordham University, who
specializes in information privacy and technology issues.
"In Europe what Northwest did is clearly illegal," he
added, saying that that kind of data disclosure could not
be made unless a criminal investigation was under way and a
judge's order had been issued.
"In the United States, on the other hand, we don't have any
such right," he said.
The professor's view of the case was disputed today by a
lawyer at the firm pursuing the case, Stuart A. Davidson,
of Cauley Geller Bowman and Rudman, in Boca Raton, Fla. He
said such a right existed under the Electronic
Communications Privacy Act, because Northwest became an
Internet company when it created its Web site and let
passengers go on line to buy their tickets.
Mr. Reidenberg said such a claim was not designed to be
covered by the act and that he believed it was not likely
to succeed. He called the suit "a novel approach."
The second complaint was filed on Tuesday by the Electronic
Privacy Information Center, a privacy rights group in
Washington. The center said it also plans to file a lawsuit
against NASA to seek more information about the agency's
secret project.
The center said Department of Transportation statistics
indicate that more than 10.9 million passengers traveled on
Northwest during the three months in 2001 that detailed
passenger data was obtained.
Mr. Reidenberg said he believed the center's claim was
stronger than the class-action suit because it is based on
the statement by Northwest to keep passenger data
confidential. Violating that promise is exactly what the
unfair and deceptive trade practice rule sanctions, he
said.
The class-action suit, filed on Tuesday in United States
District Court in Minneapolis, where Northwest has its
headquarters, says the airline violated its own privacy
policy as well as federal and state law.
"Northwest tells people bluntly" on its Web site that it
does not give out "personal information to anyone," Mr.
Davidson said.
"If you give away information that you obtain
electronically then you're liable. So they broke both their
promise to keep that information private and federal law at
the same time. And then they lied about it."
David A. Sobel, general counsel for the Electronic Privacy
Information Center, said on Wednesday that the class-action
suit "raises similar issues that we have raised." He added
that Northwest, which first denied it had handed over
information and then acknowledged that it had, "continues
to maintain it was not a violation of its privacy policy."
Mr. Davidson said in an interview on Wednesday that July
to September 2001 were the most likely months when the
passenger information was collected. It was later handed
over to NASA for a project to see if the agency could
"mine" the data to spot terrorists.
Assuming that 10 million people traveled in those months,
he said, federal law allows each person to collect at least
$1,000 in statutory damages, and that the firm was also
seeking punitive damages.
The Florida law firm also has suits pending against
JetBlue, which in September 2003 said it had given
information on passengers to a military company that works
under contract for the Defense Department. The disclosure
was heavily criticized by privacy advocates, and JetBlue
later apologized to its customers.
Mr. Reidenburg said: "The other question is, are there
other airlines that have taken part in this? When JetBlue
was exposed, Northwest said they had never done this. It
would be somewhat surprising if they only sought this data
from two airlines."
http://www.nytimes.com/2004/01/22/national/22CND-AIR.html?ex=1075800651&ei=1&en=f9ffa24aa4689bf5
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