DHS Announces Secure Flight Program

On October 22, 2008, DHS announced issuance of the final Secure Flight Final Rule (the “SF Rule”). This followed a Notice of Proposed Rulemaking issued in August 2007. In its final form, the SF Rule shifts responsibilities for review of pre-departure watch lists from individual aircraft operators to the Transportation Security Administration (“TSA”) or CBP. This implements a key recommendation of the 9/11 Commission by giving the government responsibility for monitoring watch lists.

Under the SF Rule, airlines now are required to collect the passenger’s full name, date of birth and gender when making an airline reservation. The TSA will receive this information and determine if it matches any “No Fly” or “Selectee” list maintained by government law enforcement agencies. The result will be returned to the airline, after which the passenger data in most cases will be destroyed to address civil liberties concerns.

Domestic and international carriers, and industry associations, have expressed many concerns in connection with the implementation of the SF rule. Among those, the fact the industry in general will need at least six months to upgrade its reservation and departure systems in order to come into compliance with the rule. Implementing the rule will also be extremely expensive, particularly, for an industry that has sustained large economic losses and operates almost at break-even point. Other concerns include travel disruption since the rule requires bulk buyers to provide the identities and personal information of each passenger 72 hours in advance of a flight; the disruption of foreign carriers operations by requiring passengers to be screened even if a flight does not intend to land in the United States; and the creation a data collection system likely to be at odds with other DHS data collection programs. The SF Rule will be implemented in two phases. First TSA will assume watch list responsibility for domestic flights in early 2009. Later that year, CBP will be given similar responsibility for international flights.

TSA Announces Enhancements to Airport ID Requirements to Increase Safety

U.S. Department of Homeland Security’s Transportation Security Administration (“TSA”) announced in June 2008 that as of June 21 passengers willfully refusing to provide identification at a security checkpoint will be denied access to airports’ secured areas. This rule will apply only to individuals refusing to provide any identification or to assist transportation security officers establishing the individuals' identities. This new rule will not affect passengers who may have lost, misplaced, or not having an ID but who are considered "cooperative."

Passengers who cooperate with TSA officers, however, may be subject to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures. TSA’s announcement comes somewhat as a surprise, given the fact that all passengers are required a boarding pass along with identification in order to get past the security checkpoint at any airport in the US. Before this announcement, federal regulations prohibited “non-ticketed” individuals to go beyond passenger security screening at all U.S. airports.