On March 21, 2024, the U.S. Department of Transportation (DOT) announced an upcoming review of airlines' collection, handling, maintenance and use of passengers' personal information ("PI"). This the first of what will be periodic reviews of airline privacy practices by DOT and is intended to ensure that passenger PI is not “improperly monetized or shared with third parties."  As discussed in our previous articles relating to DOT rulemakings , the current Administration is prioritizing consumer protection initiatives relating to airlines, including through the use of an online dashboard intended to reflect certain consumer-related airline practices.

To initiate the review, DOT requested information from the ten largest airlines in the U.S. relating to the following:

• Policies and procedures-- specifically, an airline's collection, handling, maintenance and use of a passenger's PI.  This also includes monetization of passenger data and targeted advertising. 
• Complaints-- specifically, allegations that airline personnel mishandled PI or violated an individual's privacy.
• Privacy training materials-- specifically, training documents and information about airline personnel that receive training and how frequently. 

DOT has the authority to investigate complaints and take enforcement actions, including civil (monetary) penalties, against airlines and ticket agents that engage in unfair or deceptive trade practices. 49 U.S.C. § 41712 and 14 C.F.R. 259.   DOT has stated that mishandling the private information of consumers may be considered an unfair or deceptive trade practice for which DOT may impose a civil penalty.  According to DOT, it may issue a civil penalty relating to passenger PI when an airline: 

• violates the terms of its privacy policy;
• violates a DOT rule identifying practice(s) DOT has deemed unfair or deceptive;
• violates certain laws, including the Children's Online Privacy Protection Act (COPPA) or rules of the Federal Trade Commission implementing the provisions of COPPA;
• engages in an “unfair” trade practice, as determined by DOT.
• engages in a “deceptive” trade practice, as determined by DOT.

The DOT defines a practice as “unfair” to consumers if it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition.  The DOT defines a practice as “deceptive” to consumers if it is likely to mislead a consumer, acting reasonably under the circumstances, with respect to a material matter. A matter is material if it is likely to have affected the consumer's conduct or decision with respect to a product or service. 14 CFR § 399.79 (b). 

An airline's actions relating to passenger PI are not the only category of actions under which DOT may issue a civil penalty.  In August of last year, we discussed DOT's issuance of civil penalties against airlines for its determination of tarmac delays and refund practices in violation of unfair or deceptive trade practices.