Benjamin Edelman and Mike Borsetti
Petition for Rulemaking – Passenger Right to Record

BEFORE THE DEPARTMENT OF TRANSPORTATION
OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS
WASHINGTON, D.C.

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)
Benjamin Edelman and Mike Borsetti
)
petitioners
)
)
)
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Docket DOT-OST-2017-____

PETITION FOR RULEMAKING: PASSENGER RIGHT TO RECORD
Comments with respect to this document should be addressed to:
Benjamin Edelman
169 Walnut St
Brookline, MA 02445
ben@benedelman.org

Mike Borsetti
600 Montgomery St #2400
San Francisco, CA 94111
mike@borsetti.com

Dated: June 19, 2017

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BEFORE THE DEPARTMENT OF TRANSPORTATION
OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS
WASHINGTON, D.C.

------------------------------------------------------)
)
Benjamin Edelman and Mike Borsetti
)
petitioners
)
)
)
------------------------------------------------------)

Docket DOT-OST-2017-____

PETITION FOR RULEMAKING: PASSENGER RIGHT TO RECORD
1.

We submit this petition for rulemaking under 14 CFR 302.16 to request

that the Department reject airlines’ improper attempts to prohibit recordings by
passengers of events onboard common carriage aircraft and their interactions with staff
I.

FACTS
A. Passengers reasonably and properly record certain airline staff and onboard
events
2.

Passengers in a variety of circumstances reasonably and properly seek to

preserve events pertaining to air travel, including recordings made in photographs, audio,
or video (collectively, “recordings”).
3.

The following sections present a small sampling of situations in which the

public interest was or would have been served by passenger recordings, as well as
situations in which passengers were improperly and arbitrarily penalized by airlines for
recording.

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B. Recordings are in the public interest as they provide a reliable factual record
of disputed events
4.

The importance of onboard recordings received international attention

when United on April 9, 2017 sought to remove David Dao, a paid passenger on a United
Airlines flight, after he had boarded and taken his assigned seat. Onboard video
recordings, prepared by at least five passengers, reveal that Dao was at all times peaceful
and indeed articulate in orally opposing United’s actions—undercutting the version of
events offered by United (CEO Oscar Munoz’s initial email to all company employees
called Dao “disruptive and belligerent”) and airport security officers (whose same-day
sworn reports claimed Dao was “swinging his arms up and down with a closed fist” and
“flailing and fighting”). Without video evidence, Dao would surely have been removed
from the flight and forced to stay overnight at his own expense, and he might have been
denied further travel on United, added to a ban list, or even faced criminal charges. But
thanks to video evidence, legal proceedings went the other way: Dao had strong legal
claims against United as well as the City of Chicago (employer of the security officers
that United called to remove Dao)—claims which, by all indications, United paid a
substantial sum to resolve.
5.

In an incident later in April 2017, a mother traveling on AA with two

young children claimed a flight attendant assaulted her as he took her stroller. While
video does not show the incident, it does show the demeanor of those onboard including
the demeanor of the flight attendant who on video threatened another passenger. The
video also preserves contemporaneous reaction of those who were in a position to see the
incident, providing evidence of their understanding of what occurred, based on what they
had seen just seconds earlier. Based on the video, an AA statement indicated that an

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investigation was warranted and that the flight attendant at issue did not act as trained or
as required by AA. Moreover, the flight attendant was removed from duty pending
investigation. By all indications, passenger allegations alone (without video) would not
have prompted such an investigation or such removal from duty. 1
6.

In April 2015, passenger Steven Leslie noticed JetBlue flight attendants

remarking on the health of a boy with a serious illness who had been medically cleared to
fly. Concerned that JetBlue might deny that passenger boarding, because he knew that
another airline had recently denied travel to a child with cancer, Leslie began to record
the situation in order to preserve a record in case of any dispute. He made this recording
quietly from his seat, without interfering with airline crew. After JetBlue staff removed
the boy and his family, a JetBlue employee ordered that Leslie delete the video. When he
refused to delete the video, he was removed from the aircraft and delayed nine hours
waiting for the next flight. 2
7.

In docket DOT-OST-2013-0024, petitioner Edelman documented

American Airlines misrepresenting carrier-imposed fees as “tax.” Edelman’s evidence
included twelve different call recordings, all posted to
http://www.benedelman.org/airfare-advertising/americanairlines.html, in which twelve
different AA telephone representatives independently used the term “tax” to describe
carrier-imposed fees. Edelman resorted to making these recordings—and posting them
and transcribing them in relevant part—because, prior to these recordings, AA disputed

1

“Video: Mother allegedly hit by American Airlines employee on California flight,” ABC7 Eyewitness
News, April 21, 2017, http://abc7.com/news/mother-allegedly-hit-by-american-airlines-employee-duringflight/1902263/ .
2
Christopher Elliott, “Read This Before You Take Pictures on a Plane,” The Blog, May 17, 2015.
http://www.huffingtonpost.com/christopher-elliott/read-this-before-you-take_b_7300830.html .

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that its staff had made these false statements. For example, no less an authority than prior
AA general counsel Gary Kennedy claimed that any false statements about tax were
made only “after the booking and purchase process has been completed” (namely, in the
written receipts which were not in dispute). 3 Call recordings were necessary to
demonstrate the false statements repeatedly made by AA’s telephone reservations staff.
8.

In docket DOT-OST-2014-0033, passenger Miriam Edelman sought to

demonstrate that a placard, required under 14 CFR § 250.11, was not present at the
departure gate where she claimed to have been involuntarily denied boarding by AA.
AA’s Answer admitted that the placard was missing as of the date of the disputed events,
but the parties disagreed about the duration of its absence. AA’s contention was based on
its business records. Ms. Edelman’s contention was based on the date-stamped
photographs taken by a colleague of petitioner Edelman (who represented Ms. Edelman
in this matter). Only thanks to the photograph was Ms. Edelman able to establish that
AA’s business records were incorrect and that the placard had remained missing for a
longer period than AA claimed. 4 Were it not for that photographic evidence, Ms.
Edelman would have been unable to rebut AA’s contention.
C. Recordings are in the public interest as they enable market-based
mechanisms to discipline airline deficiencies
9.

Passengers face significant challenges in their efforts to hold airlines

accountable for service they view as deficient or worse. For example, courts have held
that passengers cannot bring claims against airlines for practices that are allegedly unfair
and deceptive in violation of state law. Furthermore, airlines disavow any obligation to

3

See http://www.benedelman.org/airfare-advertising/pdf/kennedy-to-edelman-11jan2012.pdf at page 2.
Because the parties have reached a tentative settlement on a portion of this matter, as detailed in document
DOT-OST-2016-0107-0010, the details of this aspect of the dispute are not present in the docket.
4

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operate on schedule, and courts have upheld airlines’ position. Civil litigation and DOT
proceedings offer potential avenues for dispute resolution, but many consumers
reasonably find the cost too high, and success too uncertain, for these to be attractive
possibilities. Nor does competition necessarily assure high quality service, as many
routes have a limited choice of carriers; mergers have reduced choice; and many airlines
are similar in the respects that consumers frequently criticize, making it difficult to find a
competitor with a different approach.
10.

On the other hand, passengers have found that they can post photos,

recordings, and videos of alleged airline misconduct—letting public scrutiny push
airlines to improve, enabling a market-based demand-side mechanism for supplier quality
control. Airlines and airline staff improperly attempt to block this market-based
mechanism by banning recordings and purporting to ban recordings.
11.

For example, in a May 2016 incident, United attempted to suppress public

criticism of alleged service deficiencies. After cancelation of a United flight on which he
was ticketed and confirmed, passenger Benjamin Godsill was disappointed by a long line
of passengers seeking assistance, and he posted a photograph to Twitter showing
insufficient United staff available to help. By all indications he hoped that United would
find another way to assist affected passengers, and perhaps adjust future staffing in
anticipation of other cancellations. Replying on Twitter using United’s official @united
account, a United representative replied “Hi Benjamin, please delete these photos and
DM us with them and if we may assist you.” The Twitter discussion does not reflect

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@united assisting Mr. Godsill, nor did United offer any proper reason for insisting that
Mr. Godsill remove the photograph in order to receive service. 5
12.

Consider also the Delta Airlines employee who on July 1, 2016 assaulted

12-year-old passenger Matthew Boggan by striking his hand and camera as he recorded
her oral remarks. Traveling with his family, Mr. Boggan had faced a series of “rolling
delays” in which Delta announced a brief delay, but failed to honor the subsequent
departure time—keeping passengers in the gate area, and discouraging passengers from
making other arrangements, as passengers invariably hoped that each delay would be the
last. These delays stretched to 12 hours, overnight, and passengers including Mr. Boggan
slept on the floor in an airport terminal. In response, Mr. Boggan sought to record
subsequent statements by Delta representatives—both to document further promises
about departure time (in order to criticize any further rolling delays) and also to facilitate
public discussion of Delta’s service generally. But when Mr. Boggan recorded a gate
agent making an announcement, the agent slapped the phone out of his hands—an
incident itself recorded in his video. 6
D. Airlines have retaliated against passengers for making recordings, including
denying transport, summoning security officers, threatening to confiscate
devices, and even committing physical assault
13.

In May 2017, passenger Navang Oza had a disagreement with United

Airlines ground staff in New Orleans as to the fee to check a bag. Believing the agent’s
position to be incorrect, particularly because it was inconsistent with prior actions by
other United agents, Mr. Oza sought to memorialize the agent’s position for further

5

Benjamin Godsill, @mrgodsil, May 17, 2016; 3:28pm, and United, @united, May 17, 2016, 3:43pm.
https://twitter.com/united/status/732657761662558208 .
6
Julia Marsh and Alex Taylor, “Family sues Delta over agent smacking phone out of kid’s hand,” New
York Post, May 2, 2017, http://nypost.com/2017/05/02/family-sues-delta-after-agent-smacks-phone-out-ofkids-hand/ .

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dispute resolution, and he began to record their discussion. The agent responded “You
did not have my permission to videotape” and instructed a colleague to cancel Mr. Oza’s
reservation, which the colleague did. Mr. Oza had no choice but to travel on another
airline at additional expense. 7 Video evidence proves Mr. Oza’s version of events, which
a United spokesperson admits does not reflect the airline’s intended procedures. Were it
not for the video, Mr. Oza would be unlikely to obtain such an admission from United,
not to mention the refund and apology that should follow the airline’s admission of error.
14.

In a February 2013 incident, travel blogger Matthew Klint was

involuntarily removed from a United flight from Newark to Istanbul. Mr. Klint
photographed his seat in anticipation of posting an online review. United cabin crew told
him that he was not permitted to take pictures onboard, and the pilot then required him to
leave the flight, threatening to call the police if Mr. Klint did not leave on his own. 8
Notably, the pilot claimed that the specific reason for removing Mr. Klint was that he had
purportedly continued to take photographs even after a flight attendant instructed him to
stop, a claim which Mr. Klint emphatically denies. Four other passengers supported Mr.
Klint’s version of events. 9 As Mr. Klint was taking only still images, no video record or
other recording helps resolve the differing reports of Mr. Klint and the flight attendant as
to whether he continued photographing after being told to stop.

7

Travis Gettys, “Watch: United Airlines employee orders passenger’s ticket canceled for recording
baggage dispute,” May 9, 2017, Raw Story, http://www.rawstory.com/2017/05/watch-united-airlinesemployee-orders-passengers-ticket-canceled-for-recording-baggage-dispute/ .
8
Matthew Klint, “Thrown Off a United Airlines Flight for Taking Pictures!”, Live and Let’s Fly –
Boarding Area Blogs, February 19, 2013. http://liveandletsfly.boardingarea.com/2013/02/19/thrown-off-aunited-airlines-flight-for-taking-pictures/ .
9
Matthew Klint, “Update: United Airlines Responds to Photo Incident,” Live and Let’s Fly – Baording
Area Blogs, February 22, 2013. http://liveandletsfly.boardingarea.com/2013/02/22/update-united-airlinesresponds-to-photo-incident/ . (At heading “Here’s some of the words from others on my flight.”)

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15.

In January 2016, a passenger known as “John P.” photographed his seat on

an AA 787, later describing himself as an “excited” “787 first-timer.” John reports being
summoned by flight attendants who, he reported, claimed that a “clearly published
policy” prohibited onboard photography; demanded that they see every picture on his
phone; demanded that he delete all photos taken onboard; and threatened that they would
confiscate his phone and have him detained upon arrival if he did not comply. 10
16.

When Mr. Leslie refused to delete the video showing JetBlue staff

removing the sick child from the aircraft and documenting the reasons why they said they
were doing so, JetBlue staff similarly removed Mr. Leslie from the aircraft. (¶6)
17.

In April 2017, passenger Michael Nissensohn took what he described as a

“selfie” video on a JetBlue flight—a 2:04 narrative about his flight, his visit to the
onboard restroom to wash his hands, and his travelling apparel. 11 By all indications, Mr.
Nissensohn intended this video for his personal use and perhaps viewing by interested
friends, and as a way to pass the time on the flight. Unbeknownst to Mr. Nissensohn, he
was recording video during a portion of the flight when the cockpit door was open
(although by all indications his camera was pointed in a different direction). In response,
he reports that a JetBlue flight attendant told him “I need to take your cell phone,”
although he refused to surrender it. JetBlue requested that airport police meet the plane
on arrival, and Mr. Nissensohn was detained by more than an hour. 12

10

John P., “Taking pictures aboard aircraft,” Ask Lucky – One Mile At A Time. January 23, 2016.
http://asklucky.onemileatatime.com/threads/taking-pictures-aboard-aircraft.5232/ .
11
“Michael Nissensohn’s video which caused incident with JetBlue flight attendant,” The Palm Beach Post.
http://video.palmbeachpost.com/Michael-Nissensohns-video-which-caused-incident-with-JetBlue-flightattendant-32287298 .
12
Eliot Kleinberg, “Delray man says JetBlue told him to stop making phone video,” Palm Beach Post,
April 19, 2017. http://www.palmbeachpost.com/news/local/new-delray-man-says-jetblue-crew-told-himstop-making-phone-video/rpQqU7p7r6sRMjPZGZs93M/ .

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18.

In June 2017, passenger Ana Heitmann was removed from a delayed AA

flight. Disappointed in a departure delay when other airline statements said the flight
would be on time, Ms. Heitmann photographed a crew member whose answer she found
unsatisfactory. She was removed from the flight and required to take a later flight. AA
staff told her that it was “illegal” to take photos of crew members onboard an aircraft. 13
19.

Passenger Matthew Boggan was assaulted by a Delta Airlines employee

who struck his hand and camera as he recorded her remarks (¶12). Mr. Boggan’s video
reveals the agent defending her actions under color of law, claiming it was “illegal” for
Boggan to record her.
E. Passengers fail to make recordings in the public interest due to well-founded
fear of airline retaliation
20.

In online forums, a variety of passengers report false statements made by

cabin crew in marketing credit cards. On information and belief, cabin crew are usually
compensated based on the number of credit card applications submitted or number of
credit card applications approved, bearing their respective referral codes. Cabin crew
therefore have a direct incentive to overstate the benefits of the cards such as by
exaggerating redemption availability, or by claiming that a given signup offer is the best
available when in fact better offers are available elsewhere. Online reports indicate that
cabin crew often make statements that are at least deceptive, and sometimes literally
false, in order to induce passengers to apply for credit cards. Petitioner Edelman has
encouraged passengers who notice such misstatements to record them for dispute
resolution. Some passengers have advised Edelman that they understand such recordings

13

Ana Heitmann, “Just got kicked off American Airlines flight…” June 7, 2017.
https://www.facebook.com/anaheitmann1911/posts/1447252542004980 .

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to be prohibited by airline policy, and they have therefore declined to record the false or
misleading statements. As a result, these false or deceptive statements have not been
scrutinized by the Department, the Consumer Financial Protection Board, or appropriate
courts. For lack of recorded evidence of what was said, these statements are not likely to
receive such scrutiny, and any false or deceptive statements are likely to continue.
F. Airlines sometimes require passengers to delete recordings
21.

Airline staff sometimes demand that passengers delete recordings on pain

of denial of transport or referral to law enforcement. John P.’s experience (¶15) is
representative—onboard staff demanding that he delete photos and show them that he
had done so, or else they would confiscate his phone and have him detained upon arrival.
Mr. Leslie’s experience is in accord, and when he stood fast in his refusal, he was indeed
removed from the aircraft. (¶6)
G. Airline policies purport to limit or prohibit recording
22.

A variety of airlines purport to limit or prohibit recording. The following

paragraphs present applicable policies of the five largest domestic airlines, in descending
order by revenue passenger miles. 14
23.

American Airlines is the largest domestic airline based on revenue

passenger miles. The American Airlines onboard magazine American Way purports to
disallow onboard recording. The magazine states as follows:
Unauthorized photography or video recording of airline personnel, other
customers, aircraft equipment or procedures is prohibited. 15

14
Bureau of Transportation Statistics, “Airline Domestic Market Share March 2016 - February 2017,”
https://www.transtats.bts.gov/ , as of May 30, 2017
15
May 2017 issue, page 105, retrieved on 29 May 2017 from
http://edition.pagesuite.com/html5/reader/production/default.aspx?pubname=&edid=c47d9aea-084f-4c8daca8-8fa400a6045f

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On information and belief, this requirement is not present in the AA Conditions of
Contract, International General Rules, or other contract documents. On information and
belief, this requirement is not published on American’s website.
24.

Southwest is the second-largest domestic airline based on revenue

passenger miles. Southwest recently told the Washington Post that its policy allows
recording of “personal events” but “can never interfere with the safety of a flight and
should always respect others’ privacy.” Southwest further indicated that passengers who
want to record Southwest employees must “Let [them] know first”—suggesting that
Southwest believes employees have the right to withhold permission for such
recordings. 16 However, on information and belief, Southwest’s current Contract of
Carriage makes no mention of any prohibition on recordings. On information and belief,
no such restriction is published on Southwest’s website.
25.

Delta is the third-largest domestic airline based on revenue passenger

miles. In litigation, Delta has claimed that a passenger’s recording constituted “failure to
abide by the contract of carriage.” 17 On information and belief, Delta has a policy
purporting to ban or limit passenger recordings. However, on information and belief,
Delta’s current Contract of Carriage makes no mention of any prohibition on recordings.
On information and belief, no such restriction is published on Delta’s website.
26.

United is the fourth-largest domestic airline based on revenue passenger

miles. United’s “electronic device policies” instructs as follows:

16
Andrea Sachs, “You’re on a plane. A situation is brewing. You have a camera. Do you press record?”
Washington Post. May 22, 2017. https://www.washingtonpost.com/lifestyle/travel/youre-on-plane-asituation-is-brewing-you-have-a-camera-do-you-press-record/2017/05/19/31d007e6-350b-11e7-b373418f6849a004_story.html .
17
Matthew Boggan, et al., v. Delta Airline Inc, Supreme Court of the State of New York, County of
Rockland, Index No. 032947/16, Verified Answer, August 24, 2016. ¶66.

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The use of small cameras or mobile devices for photography and video is
permitted on board, provided you keep the purpose of your photography and
video to capturing personal events. Photographing or recording other customers or
airline personnel without their express consent is prohibited.
This policy is posted online at https://www.united.com/web/enUS/content/travel/inflight/devices.aspx and, on information and belief, is or was
previously included in the United Hemispheres online magazine. Because the policy is
posted online, passengers could in principle learn about the policy before purchasing
tickets. However, on information and belief, the policy is not incorporated into the
United Conditions of Contract, International General Rules, or other contract documents.
27.

JetBlue is the fifth-largest domestic airline based on revenue passenger

miles. A JetBlue spokesperson recently told the Associated Press that the airline does not
publish its photography policy for security reasons. 18 By all indications, JetBlue bans
some onboard recordings, as it called airport police in response to passenger
Nissensohn’s recording (¶17).
II.

ANALYSIS
A. Airline’s recording policies lack any basis in contract
28.

The above-referenced airline policies are not binding on passengers

through traditional mechanisms of contract. A policy presented to customers only in an
onboard magazine (as AA does, ¶23) cannot be said to be part of any meeting of the
minds under longstanding principles of contract, as such a policy is unknown to
customers and unknowable to customers before the customers make purchases. A policy
presented only in an arbitrary web page (as United does, ¶26) (but not included within, or

18

David Koenig, “Airlines have rules about taking photos, video on planes,” Associated Press, May 25,
2017.

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incorporated by reference from, the governing contract documents, such as Contract of
Carriage or International General Rules) is not part of a passenger’s contract and is not
part of the bundle of obligations the customer accepts. If an airline intentionally
withholds a policy from customers (as JetBlue apparently does, ¶26), passengers
manifestly do not “agree” to such a policy.
29.

On information and belief, airlines sometimes purport to prohibit

recording based on contractual provisions that purport to allow removal for substantially
any reason. For example, AA’s Conditions of Carriage specifies:
American may refuse to transport you, or may remove you from your flight at any
point, for one or several reasons, including but not limited to: …
(10) Refuse to obey instructions from any flight crew member.
Reliance on a such a general provision would be improper in response to the passenger
recording scenarios discussed herein. If an airline has not established a specific rule
disallowing such recording, it cannot rely on a sweeping backstop such as the quoted
language, which could be invoked to impose arbitrary requirements which the passenger
did not know in advance and could not accept or reject. 14 CFR 221.40(a)(4) prohibits
vague and indefinite provisions, mandating that “rules shall state definitely what the
carrier will or will not do under the exact conditions stated in the rules.”
B. Airline’s recording policies lack any basis in law or regulation
30.

On information and belief, airlines sometimes purport to prohibit

recording pursuant to 49 USC § 46504, which prohibits passengers from interfering with
the performance of flight attendants. But a passenger who merely records, from within
his assigned seat or other areas accessible to passengers, without blocking flight crew or
indeed even speaking to flight crew, cannot reasonably be claimed to interfere with the
performance of their duties. 14 CFR 91.11 clarifies that “intimidate[ing]” a crew

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member is similarly prohibited. But passively recording a crew member’s actions, in the
crew member’s workplace in the public view, cannot reasonably be claimed to constitute
intimidation.
31.

On information and belief, airlines sometimes purport to prohibit

recording pursuant to 14 CFR § 121.317(k), which requires that
Each passenger shall comply with instructions given him or her by a crewmember
regarding compliance with paragraphs (f), (g), (h), and (l) of this section.
For example, airlines sometime tell passengers “Federal law requires passengers to
comply with crew member instructions.” But the specified paragraphs pertain to seat
belts, no smoking signs, smoking in lavatories, and tampering with smoke detectors.
Nothing in 14 CFR § 121.317 or elsewhere in applicable regulations requires passengers
to comply with arbitrary requests from crewmembers. Nothing in § 121.317(k) would
require a passenger to honor a crewmember’s request that a passenger cease recording or
delete recordings.
32.

On information and belief, airlines sometimes purport to prohibit

recordings pursuant to 14 CFR § 121.580, prohibiting “interference with crewmembers”
which instructs that “No person may assault, threaten, intimidate, or interfere with a
crewmember in the performance of the crewmember’s duties aboard an aircraft.” But a
recording, made from a place where a passenger has a right to be, cannot be aid to
“threaten, intimidate, or interfere.” A crewmember might report feeling intimidated by
the prospect of a passenger grievance well supported by recorded evidence, particularly if
such evidence supports the passenger’s version of events and undermines a false report
by the crewmember. But such a feeling is not a legally recognized notion of
“intimidat[ion]” as the true source of crewmember fear is the subsequent dispute

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resolution process, not the recording itself. A crewmember might similarly report that
knowledge of recording prevented him or her from feeling confident in performing his or
her duties. But such a feeling is similarly beyond the scope of § 121.580 and is well
beyond a fair reading of that provision.
33.

Airlines sometimes claim that banning recordings is proper in order to

assure that staff can complete their duties. For example, when Mr. Boggan recorded a
gate agent’s remarks, a Delta spokesperson defended the gate agent’s action to block the
recording, claiming that Mr. Boggan “interfered with the Delta agent’s ability to
communicate an announcement.” 19 As a threshold matter, it is unclear whether such
interference actually occurred; the video shows the agent capably making remarks
unaffected by Mr. Boggan’s recording device, and a passive bystander’s recording cannot
ordinarily be claimed to “interfere” with anything. In any event, no obvious principle of
law would justify stopping a passenger from making a recording—not to mention
committing assault—because the recording purportedly distracted the speaker or perhaps
sparked interest by other onlookers.
34.

On information and belief, airlines sometimes claim that recordings are

prohibited under state laws protecting privacy. But no airline personnel have a
reasonable expectation of privacy in their statements to passenger-customers, nor in their
statements to or actions in the passenger areas of an aircraft cabin.
C. Airlines’ recording policies are ambiguous and lead to incorrect
interpretations and incorrect enforcement
35.

Unpublished policies create an increased likelihood of policies being

enforced or applied improperly or even opportunistically. With policies not available to

19

See note 6, above.

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passengers, airline staff are more likely to perceive that they can make up rules, resolving
any ambiguity in their favor since passengers do not have the underlying documents that
might reveal errors or misinterpretations. Moreover, with policies not available to
passengers, airline staff are more likely to perceive that they can impose harsh policies of
their own creation, including threatening police intervention (as in ¶4, 13, 17, 15),
cancellation of onward travel (¶13), removal from the aircraft (¶14), and/or seizure of
personal devices (¶15, 17). These threats both undermine passenger rights and create
additional disputes.
36.

Even under the most generous reading of airlines’ policies, the policies are

widely enforced incorrectly. Consider the report of passenger John P. who indicates that
AA staff claimed not just that AA’s policy disallows recording, but that they have the
authority to seize a passenger’s electronic device if the passenger records (¶15). Even
assuming arguendo that AA’s policy (¶23) is effective through principles of contract,
despite appearing only in an inflight magazine where passengers could not know about it
at the time of booking, nothing in the stated policy gives AA the extraordinary remedy of
seizing a passenger’s device. If the policy is a contract and if the passenger breached,
AA’s proper remedy is a civil suit in a court of competent jurisdiction, seeking AA’s
actual damages as provable under law.
37.

Unpublished or unclear policies also invite confusion about what

requirements stem from federal law or regulation, versus which requirements are of an
airline’s own creation. The experiences of Ms. Heitmann and Mr. Boggan are
illustrative: AA and Delta agents claimed that recordings are “illegal” (¶12, 18) without
any apparent training on the applicable law; and, by all indications, they were incorrect in

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their claims. By conflating airline policies with federal law or regulation, airlines purport
to circumvent the requirements of contract formation: A federal law or regulation would
be binding on passengers whether or not made known to passengers in advance. In
contrast, airline policies are effective through principles of contract, requiring that the
policies be provided to passengers and incorporated into the contract formation process,
which the relevant airline policies (if they exist at all) manifestly were not. Lack of
clarity about legal violation versus contractual breach also strengthens airlines’ threats to
invoke law enforcement if passengers do not accede to airlines’ demands: Passengers
anticipate that law enforcement officers would not intervene in a private contractual
dispute, whereas officers might be would likely be more willing to enforce federal law.
38.

In failing to implement recording policies through a proper contractual

framework, airlines increase the likelihood of both disputes and errors. Indeed, airlines
have repeatedly been forced to admit that their staff acted improperly when banning
passenger recordings or retaliating against passengers who made recordings. Mr.
Nissensohn reported that a JetBlue supervisor later told him that flight attendants were
incorrect to say he could not record onboard. 20 John P. reported that another flight
attendant apologized for the actions of those who disallowed his photographs, and that
this other flight attendant offered to take pictures of him and his wife. 21 United admitted
that its employee did not follow policy in cancelling Mr. Oza’s ticket when he recorded
her remarks (¶13). After media inquiries as to JetBlue’s removal of Mr. Leslie for
recording a sick child removed from the aircraft, JetBlue admitted that the incident was a
“gray area” and paid some of Mr. Leslie’s expenses resulting from the delay. 22

21
22

See note 10, above.
See note 2, above.

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Meanwhile, airlines repeatedly ask police to respond to passenger recording, only to have
no action taken because nothing unlawful occurred (including as to Mr. Nissensohn and
Mr. Oza).
D. Even if airlines’ recording policies were proper under contract, law, or
regulation, they cannot support the extraordinary remedies that airlines seek
39.

Airlines have imposed extraordinary remedies in response to passengers’

supposed violations of recording policies. In general, an aggrieved party’s remedy for
breach of contract is a civil lawsuit if authorized by law, seeking provable damages to the
extent recoverable under law. Civil litigation is also the proper remedy for an alleged
violation of state privacy law. In contrast, airlines and airline employees widely impose
other remedies of their own extra-legal creation, such as requiring passengers to delete
recordings, denying transport, summoning security officers, or even committing assault,
all as described in section I.D.
E. Recorded factual evidence is in the public interest
40.

Recordings can help to avoid disputes. Knowing that they are being

recorded, airline staff have a heightened obligation to review applicable reviews and
comport themselves accordingly. For example, had officers anticipated that passengers
would record and share videos of their use of force against passenger Dao (¶4), it is
unlikely that the officers would have proceeded as they did.
41.

Indeed, myriad aspects of traveling experience could give rise to disputes

best resolved through recordings. Consider a seat malfunctioning in a way that allegedly
fell short of a carrier’s contractual obligations (i.e. promising a premium passenger a seat
with certain advanced functions). Consider a passenger of size that allegedly reduced
space available to others and whose presence, ticketed for a single seat, allegedly violated
an airline’s policy. Consider an onboard animal that allegedly disrupted other
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passengers. Consider airline staff who allegedly orally imposed restrictions beyond the
requirements of applicable contracts, or who denied passengers benefits promised by
contract. Consider airline staff who allegedly denied boarding without the oral
disclosures required by regulation. Each allegation is difficult to resolve without an
appropriate recording. But a tamper-proof contemporaneous electronic record eliminates
the he-said-she-said fact-finding and dramatically simplifies dispute resolution.
42.

Passenger recordings are especially important because airline staff and

contractors may provide inaccurate statements about what happened. As mentioned
above (¶4), Mr. Dao was falsely accused of “disruptive and belligerent” conduct by no
less than United CEO Oscar Munoz, and was accused of violence by airport security
officers who are now themselves under investigation both for their apparent misconduct
and their false reports. Only thanks to passenger video recordings were these false
accusations called into question. AA’s business records as to the timing of restoration of
a IDB placard were similarly inaccurate, and Ms. Edelman was able to rebut these
records only through electronic recordings made by a passenger assisting her (¶8).
Meanwhile, the absence of such recordings also harms passengers. For example, for lack
of a recording of onboard events, Mr. Klint could not adequately rebut an accusation by a
United flight attendant which he claimed was false (¶14).
43.

Remarkably, at the same time that airlines criticize passenger recordings

and purport to ban them, they also seek to use these recordings to resolve the very same
disputes. For example, responding to a media inquiry, a JetBlue spokesperson cited Mr.
Leslie’s video—the same video for which he was removed from the flight he had paid

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for!—as a possible basis to understand what occurred. 23 In response to a formal DOT
complaint from complainant Edelman, AA criticized portions of the complaint that
resulted from “an unrecorded telephone conversation” 24 between Edelman and an AA
reservations agent. As to other false statements Edelman alleged by another AA agent,
AA similarly complained that “there is no recording of the call to verify the details of this
telephone exchange.” 25 Yet even as AA claimed Edelman’s claims were weak or
stillborn for lack of such recordings, AA also claimed that Edelman was prohibited from
recording its employees’ allegedly-false statements. 26 There is considerable irony to
JetBlue first removing Mr. Leslie for making the video, then wanting to see it; and
similarly to AA criticizing the lack of call recordings while simultaneously arguing that
such recordings were prohibited. But both airlines’ statements nonetheless confirm the
importance of recordings in understanding what happened and resolving a dispute.
F. Both airline employees and the traveling public lack a clear understanding of
the rules that govern recording
44.

By all indications, neither airline staff nor the traveling public adequately

understand the laws, regulations, contract provisions, and airline policies that govern
passenger recordings. Lack of understanding creates an increased risk of incorrect
application of policy, overstatement of applicable prohibitions, and associated errors.
Airlines’ multiple admissions of errors in this area—repeatedly removing passengers and

23

Lysee Mitri, “Man kicked off Albuquerque flight after taking cell phone video,” KRQE News 13, April
14, 2015. http://krqe.com/2015/04/14/man-kicked-off-albuquerque-flight-after-taking-cell-phone-video/ .
24
Answer of American Airlines, March 22, 2013, footnote 8, docket DOT-OST-2013-0024-0012.
25
Id., page 12.
26
Supplement to the Answer of American Airlines Inc., Admissions and Denials, paragraph 5, docket
DOT-OST-2013-0024-0012 (admitting that AA’s telephone system states “this call may be recorded,” but
denying that “this statement authorizes anyone other than American to record the telephone calls”).

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taking harsh actions, only to later admit that they had done so incorrectly (¶36)—reveal
and confirm the inadequate understanding of responsible airline staff.
45.

For example, when Mr. Oza recorded a ground agent’s insistence that he

pay a high fee, the agent called airport police—but airport police reported that he was
within his rights to record the discussion because he was in a public place. The United
agent’s decision to call airport police appears to reflect her incorrect view that Mr. Oza’s
recording was unlawful. Department guidance could help reduce such confusion and
such errors.
46.

The prospect of a secret policy, such as JetBlue’s, prevents public

understanding and undermines compliance. The Department should ban secret policies,
as passengers cannot be expected to comply with rules of which they are not told.
47.

Even airline attorneys appear to have an incomplete understanding of the

relevant law and contract pertaining to passenger recordings. Defending litigation by Mr.
Boggan, Delta offers an affirmative defense that the events at issue—the Delta ground
agent assaulting Mr. Boggan—“were caused solely by [Boggan’s] conduct and failure to
abide by the contract of carriage, failure to follow lawful directives from gate agents in
connection with boarding procedures and failure to abide by Federal Aviation
regulations.” 27 Tellingly, Delta fails to cite an applicable provision of the Contract of
Carriage, fails to identify any authority that the gate agent’s request was lawful, and fails
to identify any federal regulations on point. On information and belief, there is no such
authority.

27

Delta Airline Verified Answer, supra note 17.

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G. Market competition is unlikely to provide the benefits of recording
48.

Airlines’ recording policies are often secret and, in any event, difficult to

find on their web sites. Competition will not discourage airlines from implementing
harsh policies if customers cannot know about these policies when choosing travel.
49.

Moreover, passengers are unlikely to choose an airline on the basis of

right to record or right to collect information to resolve disputes. Instead, traditional
metrics such as price and schedule are likely to dominate decisions for substantially all
passengers. Meanwhile, increased concentration among just a few airlines further
reduces the opportunity for, and likelihood of, an airline distinguishing itself through a
superior policy in this regard.
H. Rulemaking would advance the Department’s mission and the Secretary’s
stated policies
50.

The Department’s mission affirms its aspiration to “enhance[] the quality

of life” through transportation. A troubling series of disputes between passengers and
airlines, including high-profile disputes and disputes culminating in physical injury,
reveal that much is left to be done in service of this worthy goal. Recordings play an
important role in assuring that both passengers and airline personnel do their part, and we
call for DOT rulemaking to assure that passengers can make such recordings with
appropriate confidence.
51.

Secretary Chao on June 7, 2017 reaffirmed that the Department’s

consumer protection program “requires that all sellers of air transportation provide
consumers with timely, accurate, and complete information on which to base their
purchasing decisions” and that “the Department recognizes the importance of market

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forces in shaping this system while closely monitoring the industry to prevent unfair,
deceptive, and anti-competitive practices.” 28
III.

REQUEST FOR RULEMAKING
52.

We ask that the Department issue rules indicating that:
a. passenger recordings, subject to reasonable conditions, are in the
public interest;
b. recordings made to resolve bona fide disputes are presumptively in
the public interest;
c. recordings made from a place where a passenger has a right to be,
without interfering with airline personnel, are presumptively in the
public interest;
d. the mere fact that a recording preserves statements of airline
personnel, or shows airline or airport equipment, does not render
the recording improper or impermissible.

53.

We ask that the Department issue rules declaring that recordings

consistent with ¶52 are a passenger’s right and do not violate any statutory or regulatory
prohibitions.
54.

We ask that the Department find that recording, in and of itself, does not

“intimidate” a crew member within the meaning of 14 CFR 91.11; and to find that
recording, in and of itself, does not “assault, threaten, intimidate, or interfere with a
crewmember” within the meaning of § 121.580.

28

Secretary Chao letter dated June 7, 2017, in DOT-OST-2016-0204-58442.

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55.

We ask that the Department issue rules prohibiting any airline policies

purportedly disallowing recordings consistent with ¶52. Furthermore, we ask that the
Department issue rules requiring that any airline policies purportedly limiting recording
have a proper and articulated purpose; that such policies be part of the airline’s
Conditions of Contract, International General Rules, or other applicable contract; that
they be readily and reasonably available to passengers prior to purchase at all points of
purchase; and that that all such policies be consistent with ¶52.
56.

We ask that the Department issue rules prohibiting airline personnel from

asserting that recordings consistent with ¶52 are prohibited by law; from removing or
threatening to remove passengers for such recordings; from conditioning travel or other
benefits on failure to record, promising not to record, or deleting recordings; or from
otherwise interfering with such recordings.
57.

We ask that the Department find that it is an unfair and deceptive practice

for an airline to ban, or purport to ban, recordings consistent with ¶52.
58.

We ask that the Department reaffirm that it is an unfair and deceptive

practice for an airline to impose restrictions on passengers beyond the requirements
contained in the airline’s Conditions of Contract, International General Rules, or other
applicable contract;
59.

We further ask that the Department assess whether any of the acts reported

herein, or uncovered during rulemaking, constitute unfair or deceptive practices within
the meaning of 49 USC § 41712; and if so, we ask that the Department bring appropriate
and timely enforcement proceedings.

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Respectfully submitted,
/s/
Benjamin Edelman
/s/
Mike Borsetti

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Certificate of Service

I, Benjamin Edelman on behalf of both filers, hereby certify that I have, this 19th day of
June, 2017 caused a copy of the foregoing document to be served by electronic mail on
the following persons:
Kimberly Graber, Esq.
Blane Workie, Esq.
Robert Gorman, Esq.

kimberly.graber@dot.gov
blane.workie@dot.gov
robert.gorman@dot.gov

/s/
_____________________
Benjamin Edelman

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