Privacy Push Threatens Deals, Lawyers Warn

The FAA and business aviation industry effort to protect operator privacy risks obscuring ownership information needed for aircraft transactions, title attorneys warn.

During a panel discussion at the CJI-Miami conference in November, lawyers who frequent the FAA Aircraft Registry said a dichotomy has emerged between the need for public access to aircraft ownership information and the agency’s effort to remove identifying details from its websites due to privacy concerns.

Located at the FAA’s Mike Monroney Aeronautical Center in Oklahoma City, the aircraft registry serves as the central repository for documents that are filed in connection with buying, selling, leasing, financing and registering aircraft, panelists said. As of October, there were 307,530 aircraft registered, including commercial, business, GA, and experimental aircraft and hot-air balloons.

A provision of the 2024 FAA reauthorization act requires the agency within two years of its enactment to establish a procedure by which private aircraft owners or operators can request their “personally identifiable information” (PII) be withheld “from broad dissemination or display by the FAA,” including on any publicly available website. The legislation became law in May 2024.

Earlier this year, the FAA started offering users of its Civil Aviation Registry Electronic Services (CARES) portal a new process for withholding ownership information such as name and address by submitting a Request to Withhold Aircraft Ownership Data. In April, the agency issued a request for comment “on the impacts of the FAA removing certain aircraft registration data from FAA websites.”

An Owners’ Registry

Title attorneys argue that the aircraft registry is an owners’ not an operators’ registry. As an owners’ registry, it maintains the records of ownership of an aircraft from the beginning through all changes.

Parties file bills of sale, leases, and lien documents to provide required notice to third parties and to “perfect interests,” or protect a party’s rights or claims in an aircraft to facilitate a transaction.

“If you have an undisclosed owner of an aircraft, it basically turns a buyers’ acquisition of that aircraft into a ‘let’s make a deal’ game,” said Bruce Marshall, executive vice president and general counsel with AIC Title Service of Oklahoma City. “If the FAA continues down the path that they’re going with CARES and these privacy concerns,” he added, attorneys won’t be able to ascertain who they should be working with.

Other means exist to protect operators’ privacy than excising ownership information from the registry, attorneys say.

Under the Privacy ICAO Address program, operators can request a temporary International Civil Aviation Organization address for broadcast by their aircraft’s ADS-B transponder to foil identification by persons tracking flights using their own ADS-B receivers. The temporary address is not attached to the registry.

The Limiting Aircraft Data Displayed (LADD) program provides operators with the ability to have their flight data filtered from distribution via the FAA’s System Wide Information Management (SWIM) data feed or from public display by websites that participate in the program. SWIM subscribers such as third-party service providers are bound by a data access users’ agreement to filter any LADD participant from public display of aircraft flight data.

“The issue with privacy is there has been this hyper-focus on the information that’s of record with the FAA,” said Scott McCreary, an attorney with Oklahoma-based law firm McAfee & Taft. “There is information of record with the FAA about [aircraft] ownership, but there are also ways to enter into privacy structures that greatly reduce or eliminate the amount of personnel information in the FAA record.”

But independent flight-tracking websites that don’t rely on FAA data and the speed of social media challenge existing privacy protections.

People don’t just track aircraft based on determining the owner of record with the FAA, McCreary added. “Somebody flies from Point A to B and posts a selfie with their aircraft,” he offered. “There are aircraft that have company logos on them. There are vanity N-numbers. There are a lot of ways that this information is publicly disseminated that have nothing to do with what’s in the FAA aircraft registry.”

By inserting the data privacy provision in the 2024 FAA reauthorization act, Congress “tried to kill a gnat with a hammer,” said Gilchrist Aviation Law Principal Jack Gilchrist. “What they’re saying is that if we can just keep that out of the FAA record, we can maintain privacy for these folks. But anytime somebody takes a photo of them outside their aircraft, instantly the information is available on social media. You can’t protect that.”

The FAA “is not listening” to the concerns of title attorneys, said Gilchrist, who also faulted industry associations in their advocacy of privacy measures. “The NBAA has been big behind the concept of protecting personally identifying information from the records,” he said. “They didn’t talk a lot with us in the process. The fact is, it’s the wrong approach to try to protect people’s information.”

Panelists who spoke at the Miami conference are among members of the Aircraft Title Lawyer & Title Company Coalition, a group that represents the aviation legal and title community in Oklahoma City. The coalition submitted a 10-page response to the FAA’s April request for comment.

In its response to the FAA’s call, the coalition asks for clarification of whether a “private aircraft owner” that is eligible for privacy protections refers to an individual or includes entities such as businesses, partnerships and trusts. It asks for clarity on whether a private owner/operator is based on the type or model of an aircraft or on its operational use. The group points out that aircraft primarily operated for private use under Part 91 may also conduct occasional charter operations under Part 135.

The coalition recommends that title attorneys and companies be allowed to create CARES accounts and submit privacy requests on behalf of their clients, and that the FAA implement a timely process to activate or deactivate privacy preferences via the portal. It is essential, the coalition says, that individuals and companies that have been granted entry to the aircraft registry’s public documents room continue to have full access to owner names and contact information even if those details are no longer visible on a public website.

“[With] these privacy initiatives, their intent is to focus on privacy and aircraft operations, yet they’ve commingled and mixed the issue with privacy of aircraft ownership information and the two really are separate issues,” said Marshall.

“Trying to solve the one issue through limiting access to who actually owns an aircraft doesn’t solve the issue of privacy of operations [and] has a lot of unintended consequences for people in our end of the industry,” he added.