Experts say Delta's call for an unruly passenger no-fly list invites legal turbulence

The number of disorderly passengers on commercial airplanes has skyrocketed during the pandemic. Now, one airline executive is renewing his call for a national unruly passenger no-fly list.

Edward Bastian, CEO of Delta Air Lines, sent a letter to U.S. Attorney General Merrick Garland last week asking for the federal government's help in setting up a nationwide no-fly list for people who misbehave — sometimes violently --on planes.

"In addition to the welcome increase in enforcement and prosecutions, we are requesting you support our efforts with respect to the much-needed step of putting any person convicted of an on-board disruption on a national, comprehensive, unruly passenger "no-fly" list that would bar that person from traveling on any commercial air carrier," Bastian said in the letter shared with NPR.

The news, which was first reported by Reuters, rekindled the debate over creating a new national no-fly list, with critics warning that it could face some of the same pitfalls of previously established government no-fly lists, such as the one the Transportation Safety Administration maintains for suspected terrorists.

"Generally, we think it's a bad idea," Jay Stanley, a senior policy analyst for the American Civil Liberties Union, told NPR. "Our experience with government watch lists and ban lists has not been a good one."

Another no-fly list raises civil liberties concerns

The ACLU has sued the U.S. government on behalf of people who were put on the TSA's terrorist no-fly list without being told why they were included or how to be removed.

Stanley said the government has "fought tooth and nail against basic fairness and due process protections" in such litigation, which makes him skeptical of another proposed no-fly list.

Also, he said he worries about the disparate effects the same punishment — being prohibited from flying — could have on a slew of different alleged offenders.

"If somebody is a casual flier who only flies once or twice a year for a family vacation, then this punishment of not being able to fly would not amount to much," he said. "On the other hand, if you're in sales or some other position where your job depends on being able to fly every week, it could be an enormously significant punishment."

Still, airlines do have some legal authority to create their own no-fly lists that are separate from the databases the federal government maintains for suspected terrorists and others, according to Charles Stotler, co-director of the Center for Air and Space Law at the University of Mississippi School of Law.

"As long as the airline's not acting in an arbitrary and capricious manner, and they're taking actions in order to curb activities that might be inimicable to safety, then the airline no-fly list is legitimate," Stotler told NPR.

"There has to be some link with safety. Obviously unruly passengers fall into that," he said.

Delta said it has already put 1,900 people on it's own no-fly list for refusing to comply with masking requirements.

Unruly passenger incidents have increased during the pandemic

The U.S. has seen a spike in unruly passenger incidents since 2020, largely attributed to the stresses brought on by COVID-19 and new masking rules in airports and on planes.

The Federal Aviation Administration fielded 5,981 reports of unruly passengers last year, 4,290 of which were related to masking.

"This also predated coronavirus. We were already seeing an increase in the number of unruly passengers," Clint Henderson, senior news editor at the travel news website The Points Guy, told NPR.

Henderson said the increase before spring 2020 could have been caused by planes and airports being more crowded and the fact that people have become less willing to put up with bad behavior, including unwanted sexual advances. Then, the pandemic added a whole new set of difficulties that caused the number of unruly passenger incidents to spike.

"COVID has poured gasoline on the fire, as it were," Henderson said.

Delta previously called for a national unruly passenger no-fly list in the fall but it was never adopted.

Still, the federal government has vowed to crack down on in-flight misconduct. The TSA has threatened to revoke PreCheck privileges for people who act out on planes and doubled its fines for those who refuse to wear masks on board. The Justice Department also said in November that it would prioritize prosecuting federal crimes on airplanes that put the safety of those on board at risk.

But the ACLU's Jay Stanley worries that if the surge in unruly passenger incidents is largely driven by COVID and eventually comes down, then a no-fly list could continue to cause negative consequences for people long after the pandemic has subsided.

"[Unruly passenger incidents] may go back to normal levels when this is over," he said. "And yet we'll have this infrastructure for creating this punishment that will long outlast the current circumstances and that has the potential to create real unfairnesses for people if it's not done just right." [Copyright 2022 NPR]