Passenger Right to Record at Airports and on Airplanes?

Passengers have every reason to record airline staff and onboard events–documenting onboard disputes (such as whether a passenger is in fact disruptive or a service animal disobedient), service deficiencies (perhaps a broken seat or inoperational screen), and controversial remarks from airline personnel (like statements of supposed rules, which not match actual contract provisions). For the largest five US airlines, no contract provision–general tariff, conditions of carriage, or fare rules–prohibits such recordings. Yet airline staff widely tell passengers that they may not record–citing “policies” passengers couldn’t reasonably know and certainly didn’t agree to in the usual contract sense. (For example, United’s policy is a web page not mentioned in the online purchase process. American puts its anti-recording policy in its inflight magazine, where passengers only learn it once onboard.) If passengers refuse to comply, airline staff have threatened all manner of sanctions including denial of transport and arrest. In one incident in July 2016, a Delta gate agent even assaulted a 12-year-old passenger who was recording her remarks.

In a Petition for Rulemaking filed this week with the US Department of Transportation, Mike Borsetti and I ask DOT to affirm that passengers have the right to record what they lawfully see and hear on and around aircraft. We explain why such recordings are in the public interest, and we present the troubling experiences of passengers who have tried to record but have been punished for doing so. We conclude with specific proposed provisions to protect passenger rights.

One need not look far to see the impact of passenger recordings. When United summoned security officers who assaulted passenger David Dao, who had done nothing worse than peacefully remain in the seat he had paid for, five passenger recordings provided the crucial proof to rebut the officers’ false claim that Dao was “swinging his arms up and down with a closed fist,” then “started flailing and fighting” as he was removed (not to mention United CEO Oscar Munoz’s false contention that Dao was “disruptive and belligerent”). Dao and the interested public are fortunate that video disproved these allegations. But imagine if United had demanded that other passengers onboard turn off their cameras before security officers boarded, or delete their recordings afterward and prove that they had done so, all consistent with passengers experiences we report in our Petition for Rulemaking. Had United made such demands, the false allegations would have gone unchallenged and justice would not have been done. Hence our insistence that recordings are proper even–indeed, especially–without the permission of the airline staff, security officers, and others who are recorded.

Our filing:

Petition for Rulemaking: Passenger Right to Record

DOT docket with public comment submission form

Objections to Tentative Decision and Order to Show Cause (IATA 787)

Edelman, Benjamin. “Objections to Tentative Decision and Order to Show Cause (IATA 787).” June 2014. (Before the Department of Transportation.)

I critique Order 2014-5-7 (Docket No. DOT-OST-2013-0048-0415) to the extent that the DOT permits, or purports to permit, airlines to sell tickets other than in accordance with published tariffs. I argue that tariffs provide important benefits to passengers and should be continued notwithstanding the proposed IATA Resolution 787.

Deception in Post-Transaction Marketing Offers

Edelman, Benjamin. “Deception in Post-Transaction Marketing Offers.” U.S. Senate, Committee on Commerce, Science, & Transportation, November 2009.

I examine the consumer protection issues raised by post-transaction marketing offers. My key concerns:

  • Post‐transaction marketing offers systematically reach consumers in a time when consumers are particularly vulnerable. Post‐transaction offers feature deceptive designs that invite consumers to conclude, mistakenly, that the offers comes from the companies the consumers have chosen to frequent, and that the offers are a required part of the checkout process.
  • The automatic transfer of consumers’ payment information from a merchant to a post ‐ transaction marketer runs contrary to consumer expectations, and creates a heightened risk that consumers will “accept” financial obligations they did not intend to incur.
  • Disclosures fail to cure the deception created by post-transaction offers, their timing and formatting, and their automatic transfer of consumers’ payment information.
  • Straightforward remedies could protect consumers who have suffered unwanted charges, and could prevent further consumers from incurring similar charges.

Competition among Sponsored Search Services

Edelman, Benjamin. “Competition among Sponsored Search Services.” U.S. House of Representatives, Committee on the Judiciary, Task Force on Competition Policy and Antitrust Laws, 2008. (Hearing cancelled.) (Reprinted in Working Knowledge: Google-Yahoo Ad Deal is Bad for Online Advertising.)

Last month I was asked to testify to the United States House of Representatives Committee on the Judiciary Task Force on Competition Policy and Antitrust Laws about competition among paid search providers, particularly the proposed Google-Yahoo partnership.

At the last minute, the hearing was cancelled, and I won’t be able to testify at the rescheduled session. Rather than let my draft written statement languish, I’m taking this opportunity to post the prepared testimony I had planned to offer:

Competition among Sponsored Search Services.

Intermix Revisited

I recently had the honor of serving as an expert witness in The People of the State of California ex. rel. Rockard J. Delgadillo, Los Angeles City Attorney v. Intermix Media, Inc., Case No. BC343196 (L.A. Superior Court), litigation brought by the City Attorney of Los Angeles (on behalf of the people of California)against Intermix. Though Intermix is better known for creating MySpace, Intermix also made spyware that, among other effects, can become installed on users’ computers without their consent.

On Monday the parties announced a settlement under which Intermix will pay total monetary relief of $300,000 (including $125,000 of penalties, $50,000 in costs of investigation, and $125,000 in a contribution of computers to local non-profits). Intermix will also assure that third parties cease continued distribution of its software, among other injunctive relief. These penalties are in addition to Intermix’s 2005 $7.5 million settlement with the New York Attorney General.

In the course of this matter, I had occasion to examine my records of past Intermix installations. For example, within my records of installations I personally observed nearly two years ago, I found video evidence of Intermix becoming installed by SecondThought. By all indications, SecondThought’s exploit-based installers placed Intermix onto users’ computers without notice or consent.

Using web pages and installer files found on, I also demonstrated that installations on Intermix’s own web sites were remarkably deficient. For example, some Intermix installations disclosed only a portion of the Intermix programs that would become installed, systematically failing to tell users about other programs they would receive if they went forward with installation. Most Intermix installations failed to affirmatively show users their license agreements, instead requiring users to affirmatively click to access the licenses; and in some instances, even when a user did click, the license was presented without scroll bars, such that even a determined user couldn’t read the full license. Furthermore, some Intermix installations claimed a home page change would occur only if a user chose that option ("you can choose to have your default start page reset"), when in fact that change occurred no matter what, without giving users any choice.

Remarkably, I also found evidence of ongoing Intermix installations, despite Intermix’s 2005 promise to "permanently discontinue distribution of its adware, redirect and toolbar programs." For example, in my testing of October 2006 and again just yesterday, the Battling Bones screensaver (among various others) was still available on (a third-party site). Installing Battling Bones gives users Intermix’s Incredifind too. Even worse, this installation proceeds without any disclosure to the user of the Intermix software that would be installed. (Video proof. The installer’s EULA mentions various other programs to be installed, but it never mentions Intermix or the specific Intermix programs that in fact were installed.) Furthermore, I found dozens of ".CAB" installation files still on Intermix’s own web servers — particularly hard to reconcile with Intermix’s claim of having abandoned this business nearly two years months ago. Truly shutting down the business would have entailed deleting all such files from all servers controlled by Intermix.

I continue to think there’s substantial room for litigation against US-based spyware vendors. I continue to see nonconsensual and materially deceptive installations by numerous identifiable US spyware vendors. (For example, I posted a fresh nonconsensual toolbar installation just last month. And I see more nonconsensual installations of other US-based vendors’ programs, day in and day out.) These vendors continue to cause substantial harm to the users who receive their unwanted software.

Technology news sites and forums have been abuzz over the FTC’s proposed settlement with Zango, whose advertising software has widely been installed without consent or without informed consent. I commend the FTC’s investigation, and the injunctive terms of the settlement (i.e. what Zango has to do) are appropriately tough. Oddly, Zango claims to have "met or exceeded the key notice and consent standards … since at least January 1, 2006." I disagree. From what I’ve seen, Zango remains out of compliance to this day. I’m putting together appropriate screenshot and video proof.