Delivered-To: [EMAIL PROTECTED] Date: Thu, 22 Jan 2004 14:44:11 -0500 (EST) From: [EMAIL PROTECTED] Subject: NYTimes.com Article: Suits Against Airline Put Focus on Privacy Concerns Sender: [EMAIL PROTECTED] To: [EMAIL PROTECTED]
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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