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Ed Perkins on Travel: A national ‘no-fly’ list?

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Every few days, you seem to see another report of an unruly airline passenger, with no end in sight. Recently, the FAA has taken to hitting some offenders with stiff fines. But beyond that, folks in the industry are considering putting unruly passengers on some sort of nationwide "no fly" list that would bar them from flying on any U.S. airline.

I'm conflicted as to whether this is a good idea. On the one hand, unruly passengers cause real problems: minor delays at best, unscheduled landings and serious delays at worst. Either sort of problem results in substantial monetary losses and schedule disruptions to airlines and inconvenience to all other passengers. On the other hand, an all-airlines ban would seriously impinge on an individual's constitutional right of free movement within the country.

No-fly lists are not new. The U.S. government has been using a no-fly list for several years that targets people known or considered to be potential terrorist threats. Also, individual airlines can and do implement and variously enforce their own "no-fly" lists. The question here is really one of whether unruly passengers should be similarly barred.

My take is that any sort of no-fly system for unruly passengers, if adopted, must contain some key protections not afforded to potential terrorists. Implementing an inclusive air travel ban would be a quasi-judicial process and would therefore require, at a minimum:

• Specific standards of violation. Placement on a no-fly list should be based on some specific, documented event that constitutes a violation of law or government rule. This could take the form of an official police report or something similar. Individual airline employees should not be able to place someone on the list arbitrarily. Airlines can and do restrict the action of travelers who violate their own company policies, most notably "misuse" of frequent flyer programs and ticket purchases that involve not using some of the flights on a purchased ticket. But these policy violations are not criminal, and airlines should not be allowed to place people who violate these non-criminal policies on a national no-fly list applying to all airlines.

• Full and immediate notification. Whoever manages a no-fly list should immediately notify anyone placed on its list of the listing and the specific basis for that listing.

• A robust process for challenges and appeals. Anyone placed on a no-fly list should have access to an impartial system to challenge and appeal the no-fly listing.

• Exemptions. Anyone on a no-fly list should be able to apply for a one-time exemption due to medical emergency or compassionate need.

• A statute of limitations. Any no-fly ban should be for a specific term, with the possibility of early removal due to "good behavior" or emergency. Nobody should be subjected to an open-ended ban on the right to travel.

Who should maintain a national no-fly list is also problematic. The easiest approach would be for the government simply to add unruly travelers to its existing security-based list. But unruly travelers should not be lumped with potential terrorists. People on the current no-fly list have neither the right to information nor the right of appeal — rights that should not be denied even the unruliest of travelers.

The other approach would have a non-governmental aviation organization, such as A4A (Airlines for America), the primary trade association for big U.S. airlines, administer the list, or even an international body such as the International Airline Transport Association. But a private non-governmental approach could quickly run into constitutional challenges.

In the final analysis, I'm enough of a libertarian to believe that in facing any problem, government should try to use its available tools before creating any new ones. If rigorously pursued, fines might well do the job. But much unruly behavior seems to be spontaneous, not premeditated, so maybe the threat of a fine might not be sufficient and a list required as a backstop. As I noted, I'm conflicted: Where do you stand?

(Send e-mail to Ed Perkins at eperkins@mind.net. Also, check out Ed’s new rail travel website at www.rail-guru.com.)

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