January 8, 2010
Virgin is American, So Says DOT
After months of unedifying back-and-forths between Alaska Airlines and Virgin America concerning the latter's ownership profile, the U.S. Department of Transportation announced today that Virgin America meets the statutory citizenship requirements to provide domestic air transport service. See Press Release, U.S. DOT, Virgin America Remains U.S. Citizen, DOT Finds, DOT 3-10 (Jan. 8, 2010) (available here). From the press release:
The U.S. Department of Transportation (DOT) today announced that after conducting a thorough review it has found that Virgin America remains a U.S. citizen and remains under the actual control of U.S. citizens. Under U.S. law, only airlines that meet the standards for U.S. citizenship may hold authority to operate as a U.S. airline.
. . .
Following discussions between DOT and the air carrier, Virgin America agreed to make a number of changes to ensure that the air carrier would remain under the ownership and actual control of U.S. citizens. These changes include, among other things, provisions to ensure that new investments of capital from entities other than the Virgin Group – a collection of the United Kingdom companies and/or citizens that own 25 percent of the air carrier’s stock – can and will be obtained. Virgin America also will add an additional U.S. citizen to its board, resulting in seven U.S. citizen investor designees as voting members on the nine-member board.
Earlier blog discussions of the Virgin America citizenship proceeding can be found here, here, here, and here. The decision dismissing the proceedings are available in Order 2010-1-5, Dkt. No. DOT-OST-2005-23307 (Jan. 8, 2010) (available here).
Here Come the Body Scanners
As part of the Obama Administration's plan to beef-up air transport security, the President announced yesterday that the U.S. is urging foreign governments to deploy full body-scanners. See Spencer S. Hsu, U.S. to Push Foreign Governments to Use Full Body-Scanners at Airports, Wash. Post, Jan. 8, 2010 (available here). This move may not sit well in Europe, which is in the midst of its own debate over the use of scanning technology:
But even as the European Union’s aviation security experts met to discuss scanners, Belgium’s secretary of state for transportation, Etiennne Schouppe, described the enhanced measures as excessive, saying security requirements at European airports were already strict enough.
Spain, too, has expressed skepticism on the scanners, and the German and French governments remain uncommitted.
A German Interior Ministry spokesman, Stefan Paris, said the bloc’s rules on flight safety needed to be changed before scanners could be used. Germany’s position, he said, is that the scanners cannot be deployed until it has been shown that they will improve security, that they are not a health hazard and that they will not be so invasive that they harm individuals’ rights.
Some countries in the European Union have expressed concern that full-body scanners will be dangerous because of the radiation they emit.
See Europe Debates Use of Full-Body Scanners at Airports, Assoc. Press, Jan. 7, 2010 (available here).
Understandably, some conservative religious groups are also concerned that the technology amounts to an incursion on modesty and have asked that measures be put in place to ensure that only men scan men and women scan women. See Matthew Wagner, European Rabbis Worried Over Body Scans, Jan. 7, 2010 (available here). And, finally, the always outspoken former American Airlines Chairman and CEO, Bob Crandall, has simply called the body scans a waste of resources. See Fmr. CEO of American Airlines Calls Full-Body Scanners in Airports a Waste of Resources, FOX News, Jan. 7, 2010 (available here).
January 6, 2010
A New Low-Cost Alliance
Two Asia-Pacific low-cost carriers, Qantas's Jetstar and the Malaysian carrier AirAsia, have formed a non-equity alliance "to cooperate on passenger and ground handling in Australia and Asia at airports they both serve, to pool their inventories of aircraft components and spare parts, and to work toward joint procurement of engineering and maintenance supplies and services." See Bill Lindsay, Qantas, AirAsia Form Alliance, Wall St. J., Jan. 6, 2010 (available here). The airlines announced that their cooperative venture could be deepened in the future to include aircraft procurement and revenue sharing deals.
There is no indication in the story whether the arrangement will receive scrutiny from national competition authorities. Last month, the Australian Competition & Consumer Commission authorized a joint venture between Australia's Virgin Blue and U.S.-based Delta Air Lines to cooperate on passenger and cargo services for a five year period. See ACCC, Determination: Applications for Authorisation Lodged by Virgin Blues Airlines Pty Ltd & Others in Respect of a Joint Venture Between the Applicants, Pub. Reg. No. C2009/1317 (Dec. 10, 2009) (available here).
2009 Agenda for Freedom Summit
Documents, photographs, and recorded media from the International Air Transport Association's 2009 Agenda for Freedom Summit are available online here. Included in the materials is an outline of Prof. Brian Havel's presentation on the legality of States unilaterally waiving the nationality clauses in their bilateral air services agreements.
January 5, 2010
Reading List: Body Scans at Airports
With full-body scan technology either coming to or being discussed for major airports around the globe, blog readers may be interested in the following articles covering a range of views on the matter:
Paul S. Dempsey, Aviation Security: The Role of Law in the War Against Terrorism, 41 Colum. J. Transnat'l L. 649 (2003)
Schima Herzog, Constitutional Problems Posed by Aviation Security Post September Eleventh, 6 Fl. Coastal L. Rev. 361 (2005)
Demetrius Klitou, Backscatter Body Scanners--A Strip Search by Other Means, 24 Computer L. & Sec. Rpt. 316 (2008)
Sara Kornblatt, Comment, Are Emerging Technologies in Airport Passenger Screening Reasonable Under the Fourth Amendment?, 41 Loy. L.A. L. Rev. 385 (2007)
Tobias W. Mock, Comment, The TSAs New X-Ray Vision: The Fourth Amendment Implications of "Body-Scan" Searches at Domestic Airport Security Checkpoints, 49 Santa Clara L. Rev. 213 (2009)
Christopher E. Smith & Madhavi McCall, Constitutional Rights and Technological Innovation in Criminal Justice, 27 S. Ill. U. L. J. 103 (2002)
Julie Solomon, Comment, Does the TSA Have Stage Fright? Then Why are They Picturing you Naked?, 73 J. Air L. & Com. 643 (2008)
Steven Vina, Comment, Virtual Strip Searches at Airports, 8 Tex. Wesleyan L. Rev. 417 (2002)
Christmas Day Attack's Ramifications
The American Entrprise Institute's Critical Threats division has a very informative analysis online of the larger political and security ramifications of the attempted bombing of Northwest Airlines Flight 253. See Chris Harnisch, Christmas Day Attack: Manifestation of AQAP Shift Targeting America (Dec. 27, 2009) (available here). From the summary:
The war between the United States and militant Islamists on the Arabian Peninsula reached a boiling point this December. The Yemeni government, with the pressure and assistance of the U.S. military, dealt a significant blow to al Qaeda’s operations on the Peninsula, which are based out of Yemen. Al Qaeda in the Arabian Peninsula (AQAP) was targeted in bombing raids and ground attacks on December 17 and December 24, reportedly killing several senior AQAP leaders. Statements from AQAP over the past few months have hinted at the group’s desire to shift its primary focus from targeting Yemeni and Saudi interests to targeting the United States and its interests. The desire to hit the U.S. appears to have grown exponentially in the aftermath of the recent Yemeni and U.S. attacks on the group. AQAP nearly realized its goal of killing Americans when it deployed an operative to blow-up a plane carrying 289 people in the skies over Michigan.
New Safety Rules Coming Today
President Barack Obama is expected to announce new airline safety rules later today. See Airline Safety, United Press Int'l, Jan. 5, 2009 (available here). The President has already met with officials from the CIA, FBI, Homeland Security, and Department of Defense in preparation for the announcement. According to the story, "[t]he meeting agenda called for a discussion of 'ongoing reviews of the Christmas Day incident as well as security enhancements and intelligence-sharing improvements in our homeland security and counter-terrorism operations.'"
Approval Hurdles for a JAL/Delta Alliance
There is an excellent story from yesterday's Financial Times on the regulatory hurdles a proposed JAL/Delta alliance may face if they apply for antitrust immunity from the Department of Transportation. See Norie Hata, JAL/Delta Alliance Could Have Trouble Receiving ATI Approval, Experts Say, Fin. Times, Jan. 4, 2010 (available here).