Behind Bars… Now Behind You:carrying criminals and other deviants

Two years ago Mark Vorzimmer, the Head of Security at Virgin America, received a LinkedIn affiliation request from two young Western Michigan University students, Gabriel Langley and Alexander Szalay, interested in going into the field of aviation law. Gabe and Alex were already pursuing a curriculum in aviation operations and management, and were specifically inquiring about areas falling into a cross-section of the two subjects – legal concerns related aviation operations and management.

Coincidentally, after a number of recent disruptive passenger events aboard Virgin America – one involving the lewd and lascivious behaviour of one individual causing a diversion and a real operational headache – the idea of a commercially and legally acceptable manner of preventing these types of passengers from ‘exposing’ themselves to other aircraft operator’s passengers seemed to offer an interesting challenge. This article is a collaboration of Vorzimmer, Langley and Szalay, after a series of discussions over the ensuing months proposing how this might be practically and legally accomplished.

The International Air Transport Association (IATA) reports that “[S]ome 10,854 unruly passenger incidents were reported to IATA by airlines worldwide last year. This equates to one incident every 1,205 flights, an increase from the 9,316 incidents reported in 2014 (or one incident for every 1,282 flights)”. To be clear, these figures include only those incidents reported…and within that population, only those reported to IATA by their member carriers.

But why should an airline carry individuals who have been convicted of, or conspired to commit, violent or deviant acts against or in relation to aviation? Chances are most airlines don’t even deny transport to those who have committed violent acts on their own aircraft, let alone against or aboard another operators’ aircraft. Worse, a significant number of airlines do not even deny return transport to the very same individuals who commit violent acts on their outbound flights. Why? Perceived legal liability? The lack of an internal system to recognise and prevent such returning passengers?

What about the liability associated with injuries to, and sexual assaults against, your passengers and aircrew should these violent and deviant individuals act out on your flights? What about the safety of your unaccompanied minors? Would you really want a registered sex offender seated next to your eleven-year-old daughter? And what about the operationally disruptive, costly, and potentially dangerous diversions often occasioned by these types of people?

The following are some things aircraft operators should consider in taking steps to protect their passengers, aircrew, and aircraft from violent, deviant criminals.

Contract of Carriage
Firstly, what does your Contract of Carriage (CoC) say about your airline’s right to deny transport to those who have engaged in violent, objectionable, or other criminal behaviour, and to whom does it speak? Does your CoC language speak only to those who have engaged in such acts in the past (on your airline), or does it speak prospectively to all those who have simply entered into a ‘contract’ to fly on your planes by virtue of their having purchased an airline ticket prior to flying? All CoCs should do both, and for extra measure they should speak to those who have been convicted of committing certain crimes against aviation more broadly.

Internal Watchlisting
No policy or process to refuse transportation to anyone would be effective without the ability to recognise when such individuals attempt to make reservations on your airline. Since 9/11, airlines have been required to collect Personally Identifying Data (PID) from passengers, such as dates of birth, and most airlines have systems in place to not only recognise when certain individuals attempt to make reservations, but to even prevent completion of the booking process, forcing such parties to make actual (as opposed to virtual) contact in order to complete the booking. Other airlines permit such individuals to complete the reservations booking process, but then subsequently send alerts to pre-identified internal personnel tasked with responding to such bookings. Some simply accept bookings, but prevent check-in as a means of forcing such individuals into a face-to-face interaction with ticketing personnel who then alert internal security. In the main, the differences between these systems are driven by the technology an airline has in place.