"PRIVILEGED COMMUNICATIONS?" THE BRIGHT LiNE RULE IN THE USE OF VOICE RECORDER TAPES

Van Stewart*

I. INTRODUCTION corders ("FDRs"),' which are designed to with- stand severe impacts and extreme temperatures, The autumn of 2001 in the Northeastern were never recovered. The devices were presuma- United States was unprecedented in terms of avia- bly consumed in the flames and the subsequent tion disasters. First came the mind-numbing collapse of the Twin Towers. The recorders from events of September 11, which kept the world the wreck of American Flight 77, the Boeing 757 glued to its television sets for weeks. The story of that crashed into the Pentagon, and United Flight the four commercial that were hijacked 93, also a 757, that crashed in Pennsylvania, sur- and ultimately flown into the World Trade Center vived to provide investigators with some clues re- in New York City, the Pentagon in Arlington, Vir- garding the events on board the aircraft. Of the ginia, and an open field near Shanksville, Penn- two CVRs recovered, only Flight 93's was func- 2 sylvania, shocked and mesmerized viewers every- tional after impact. where. Next, on November 12, American Flight 587 The two Boeing 767 aircraft, American crashed shortly after takeoff from New York's ("American") Flight 11 and United Airlines John F. Kennedy ('1FK"), killing 265 per- ("United") Flight 175, that were intentionally sons. 3 The preliminary evidence showed that the flown by hijackers into the World Trade Center aircraft's vertical stabilizer 4 snapped off during or began conflagrations so intense that the Cockpit shortly after an encounter with wake turbulence 5 Voice Recorders ("CVRs") and Flight Data Re- from a Japan Airlines Boeing 747 aircraft that had

* The author is a retired captain. gation and reconstruction. 1 See NATIONAL TRANSPORTATION SAFETY BOARD 2 James O'Toole & Tom Gibb, Cockpit Tape Being Trans- ("NTSB"), : COCKPIT VOICE RECORDERS (CVR) AND lated; Information Could Yield Key Clues to Flight 93, PrrFSBURGH FLIGHT DATA RECORDERS (FDR), at http://www.NTSB.gov/ POsT-GAZErrE, Sept. 21, 2001, at Al. aviation/CVRFDR.htm (last visited Oct. 28, 2002) [hereinaf- 3 See Marion C. Blakey, Opening Statement at the Na- ter COCKPIT VOICE RECORDERS AND FLIGHT DATA RECORDERS]. tional Transportation Safety Board Fit. 587 Press Conference Cockpit voice recorders record voices and other audible (Feb. 8, 2002), available at http://www.ntsb.gov/Speeches/ sounds within the cockpit, such as the noises generated by blakey/mcb020208.htm (last visited Apr. 17, 2002) [hereinaf- turning a switch on or off or positioning a flap handle. These ter Blakey Opening Statement]. sounds are captured by area microphones and the crew 4 The vertical stabilizer is the large fin that rises upward members' individual microphones. Flight data recorders re- from the tail of an airplane to give the aircraft directional cord performance and configuration information from an stability. Typically, a rudder is attached to the trailing edge of aircraft's systems, such as airspeed, altitude, acceleration the vertical stabilizer. For more information on this and (also referred to as "G forces"), aircraft fuselage angle (also other components of an aircraft, see NATIONAL AERONAUTICS referred to as pitch), angle of bank, and flight control and AND SPACE ADMINISTRATION ("NASA"), GLENN RESEARCH landing gear positions. Early models recorded as few as five CENTER, AIRPLANE PARTS DEFINITIONS, at http://www.grc. parameters. The current generation of FDRs, called Digital nasa.gov/WWW/K-12/airplane/airplane.html (last visited Flight Data Recorders ("DFDRs"), are required to monitor October 1, 2002). and record at least 28 key parameters. DFDRs are capable of 5 See Advisory Circular, U.S. Department of Transporta- monitoring and capturing information from more than 300 tion and Federal Aviation Administration, Aircraft Wake Tur- other onboard sources. Thus, DFDRs provide investigators bulence, available at http://www.bayareapilot.com/waketur with a wealth of data from which they can then reconstruct bulence.htm (October 1, 1991) (last visited Apr. 17, 2002) an accident, often by using computer simulation. Id. While (explaining the concept of "wake turbulence," which is gen- FDRs, DFDRs and the information they produce are crucial erated by every aircraft in flight). to modern accident reconstruction, they are beyond the Historically, when pilots encountered this wake in flight, scope of this Comment and are mentioned here only to pro- the disturbance was attributed to "prop wash," the swirl vide a more complete picture of the tools of accident investi- of air trailing a propeller-driven aircraft caused by the COMMLAW CONSPECTUS [Vol. 11 taken off shortly before the American A300.15 2002, less than three months after the accident, While the first four crashes clearly were not acci- the NTSB issued a Safety Recommendation on pi- dents, 7 the crash atJFK apparently was." Common lot training issues. The Safety Recommendation among these seemingly unrelated crashes is that noted that certain manipulations of rudder con- the recovered CVRs and FDRs play an important trols may "produce loads higher than those re- part in the investigations that follow air disasters.1 quired for certification and that may exceed the 1 2 A civil aircraft accident within the United States structural capabilities of the aircraft." is normally investigated by the National Transpor- In the aftermath of any commercial aircraft tation Safety Board ("NTSB" or "the Board")."' crash, requests are typically made for detailed in- When found, the recorders are taken to the NTSB formation from the recorders.' 3 These requests laboratory in Washington, D.C. for retrieval and come from a wide variety of interested parties in- analysis of any information they may contain. If it cluding the media, media watchdogs, sensation is determined that an airplane crash is the result seekers, family members of crash victims, and of a criminal act rather than an accident, as is the plaintiffs' and defendants' attorneys.' 4 But the case with the four crashes of September 11, the law, as reflected by federal regulations and court Federal Bureau of Investigation ("FBI") becomes decisions, dictates that access to the actual audio the lead investigative body, with the NTSB provid- output of the recorder, i.e., the recordings as op- ing technical support. I I While major accident in- posed to their transcripts, will be very limited and vestigations may take years to determine a cause, will only be given to those directly involved in the useful information can bring about important rec- crash investigations. Access to the actual record- ommendations early in the investigative process. ings is limited because, as the original legislation For example, after the crash of American Flight mandating CVRs states, the information is in- 587 in New York, enough information was ob- tended solely for accident investigation pur- tained from the investigation that on February 8, poses. 15

corkscrew effect of its propeller. It is known, however, reoccurrence"). that this disturbance is caused by a pair of counter rotat- 1) See NTSB, ABOUT THE NTSB: HISTORY AND MISSION, at ing vortices trailing from the wing tips. The vortices http://www.ntsb.gov/AbtNTSB/history.htm (last visited from large aircraft pose problems to encountering air- Apr. 17, 2002). The NTSB is an independent federal agency craft. For instance, the wake of these aircraft can impose responsible for investigating all accidents and rolling moments exceeding the roll control capability of major rail, highway, marine and pipeline accidents in the some aircraft. Further, turbulence generated within the United States. Id. vortices, if encountered at close range, can damage air- I' See 49 U.S.C. §1131(a)(2)(B) (2000). The statute craft components and equipment and cause personal in- states that "[it] the Attorney General, in consultation with juries. Id. the Chairman of the Board [of NTSB] determines and noti- 6 Press Release, NTSB, Update on NTSB Investigation fies the Board that circumstances reasonably indicate that the into Crash of American Airlines Flight 587 (Nov. 20, 2001), accident may have been caused by an intentional criminal available at http://www.NTSB.gov/Pressrel/2001/011120. act, the Board shall relinquish investigative priority to the htm [hereinafter Press Release Flight 587]. Federal Bureau of Investigation." Id. See also NTSB, ABOUT 7 Press Release, NTSB, NTSB Providing Technical Assis- THE NTSB: THE INVESTIGATIVE PROCESS, at http:// tance to FBI Investigation (Sept. 13, 2001), available at http:/ www.NTSB.gov/AbtNTSB/invest.htm (last visited Apr. 17, /www.NTSB.gov/Pressrel/2001/010913.htm TSB.gov/Press- 2002) (detailing the circumstances under which the NTSB rel/2001/010913.htm [hereinafter NTSB Providing Techni- handles an investigation of an aviation accident). cal Assistance to FBI Investigation] (stating that because the 12 See Safety Recommendation Letter from Marion C. crashes of the four on September 11, 2001 were Blakey, Chairman of the NTSB, to Jane F. Garvey, Adninis- "criminal acts," the Federal Bureau of Investigation ("FBI") trator of the Federal Aviation Administration (Feb. 8, 2002), was named the "lead investigative agency" and was placed in available at http://www.ntsb.gov/Recs/letters/2002/ charge of "[releasing] all information on the progress of the A02_0102.pdf (last visited Apr. 17, 2002) (detailing NTSB investigation"). safety recommendations A-02-01 and A-02-02, which seek to 8 See Press Release Flight 587, supra note 6 (stating that rectify inadequate pilot training concerning the "structural after the Flight 587 crash, NTSB Chairman Marion C. Blakey certification requirements for the rudder and vertical stabi- and FBI Director Robert Mueller remained in contact be- lizer on transport-category airplanes"). cause the FBI was an "active participant in the investiga- '3I See, e.g., Jonathan D. Silver, Flight 93 Black Box Under tion"). At the time of the press release, the NTSB had found Wraps, PrI-TSBURGH POsTr-GAZEIT, Nov. 4, 2001, at A9 (dis- nothing to indicate that the crash of Flight 587 was "anything cussing the public's difficulties in gaining access to the other than an aviation accident." Id. United Flight 93 FDR). 9 See Blakey Opening Statement, supra note 3 (explaining 14 See id. that the "goal of... every [aircraft accident] investigation- 15 See Installation of Cockpit Voice Recorders in Large is to determine the cause of the accident and prevent its Airplanes Used By An Air Carrier or a Commercial Operator, 20031 "Privileged Communications?"

Beginning with the introduction of CVRs, there corders, particularly an active proposal to man- has been an ongoing tension involving the gov- date cockpit video recorders in commercial air- ernment, air carriers, airline pilots, the press, and craft. Finally, this Comment will forecast that the the legal community regarding access to, and the advent of cockpit video recorders will disturb the appropriate use of the audio tapes and transcripts delicate legal equilibrium that exists today, neces- from the recorders. This Comment will outline sitating continued vigilance by Congress and the the history of the introduction of CVRs in the U.S. courts. civil air fleet as an aid to accident investigation, including the acquiescence of airline pilots to the II. PROVIDING THE MISSING PIECES FOR invasion of their privacy in the interest of aviation ACCIDENT INVESTIGATORS - A BRIEF safety. Next, this Comment will describe the four HISTORY principal potential uses and abuses of the prod- ucts of the recorders (recordings and their tran- The earliest airplanes did not have an electrical scripts) and trace some of the history of each. system, let alone a radio or recorders. If the air- This Comment then will explore the principal po- plane had more than one seat, communications sitions of the various constituencies, especially in between the occupants occurred through either the context of applicable legislation and litiga- hand signals or a "gosport," a rubber tube tion. The Comment next addresses the current through which an instructor pilot could talk to his state of equilibrium. While not living up to the or her student.'" After electric generators were originally intended narrow use of CVR record- developed for aircraft, radios and a never-ending ings, it nevertheless provides a bright line rule collection of technological gadgets followed, 7 limiting access to the recordings to very specific which now include satellite-based navigation,' and narrowly defined circumstances outside of ac- satellite-based communications18 and digital data cident investigation, which are guided by carefully links used for air-to-ground communications, 19 prescribed rules of discovery. The Comment will and the FDRs and CVRs that are the mainstay of point out that the information available in pub- modern aircraft accident investigation followed. licly released transcripts should be adequate for Aircraft accident investigation has evolved from the needs of those outside the accident investiga- cursory and ineffectual efforts to find the cause of tion arena, obviating the need to subpoena re- an accident2" to a very painstaking and technical cordings for what amounts to fishing expeditions. process involving investigators from a wide variety The Comment will then discuss current issues and of disciplines using sophisticated techniques and initiatives affecting the future of aircraft flight re- technologies. 21 From the industry's early begin-

29 Fed. Reg. 8401 (July 3, 1964) [hereinafter Installation of gpsinfo.html (last visited Apr. 17, 2002) (providing a techni- Cockpit Voice Recorders] (stating that the FAA's "only pur- cal description of GPS). pose in requiring the recorded information is to assist in de- 18 See EMS TECHNOLOGIES, INC., SATCOM, AERONAUTICAL termining the cause of accidents or occurrences" and that SOLUTIONS, at http://www.emssatcom.com/solutions/ the information is only to used in "connection with the inves- s_aeronautical.asp (last visited Apr. 17, 2002) (providing tigation of accidents or occurrences"). multiple links to one manufacturer's satellite communica- 16 See Jack Cook, Part I, Training Days, at http:// tions products). www.ajcockrell.com/history/jcookO1.htm (last visited Oct. 19 See, e.g., ARINC PRODUCTS & SERVICES, GLOBALINK 22, 2002). The instructor had a rubber tube known as a "gos- SERVICES, at http://www.arinc.coin/products/globalink/in- port" that he could use to talk to the student. One end was dex.html (last visited Apr. 17, 2002). The data link services attached to the ear flap on the student's leather helmet, and used by airlines are used primarily to communicate with dis- the other end was a small funnel into which the instructor patchers and maintenance centers on operational and main- yelled. The student could not talk to the instructor; he could tenance matters, as well as with automated services that pro- only shake his head "yes" or "no." Communications between vide weather and airport-related information. These data instructor and student could have been lost because of the links provide high speed, high capacity communications noise from the engine and the rush of the wind through the without congesting traditional voice frequencies. Id. cockpit. Id. 20 See generally GEORGE E. HOPKINS, FLYING THE LINE: THE 17 See SMITHSONIAN INSTITUTION, NAVIGATION IN THE AIR, FIRsT HALF CENTURY OF THE AIR LINE PILOrS ASSOCIATION 38- at http://www.nasm.si.edu/galleries/gps/airnav.html (last 41 (1982) [hereinafter HOPKINS] (describing early efforts in visited Apr. 17, 2002). The current generation of transport aircraft accident investigation and the erratic results caused aircraft use the satellite-based Global Positioning System by unsophisticated techniques and other shortcomings). ("GPS") for precise navigation. Id. See also U.S. NAVAL OBSER- 21 One need only compare an accident investigation re- VATORY, NAVSTAR GPS OPERATIONS: USNO NAVSTAR port from an earlier time with a contemporary report to see GLOBAL POSITIONING SYSTEM, at http://tycho.usno.navy.mil/ the level of sophistication of modern technology and tech- COMMLAW CONSPECTUS [Vol. 11 nings in the 1920s through the late 1950s, the would enter the intake of the cabin heater, caus- only way to ensure an onboard eyewitness account ing it to catch fire. 2 7 The investigators discovered of an aircraft accident was pilot survival. Without a these deficiencies and also found that there were reliable observer, most accident reconstruction no published crew procedures for fuel transfer 2 was left to educated guesses and speculation.. 2 that could have prevented the fires. 28 As a result, For instance, after World War II, there was a the Civil Aeronautics Administration2 9 grounded string of speculative efforts to pin down the cause all DC-6s 11 and brought about needed changes. of a series of accidents involving cargo compart- The radioed reports from the United crew and ment fires in DC-6 aircraft. Consensus had been the survival of the American crew were serendipi- building that these and other similar accidents in tous. Several aircraft, however, were lost before this time frame all were due to .231 Acci- the problem was found.-1 dent investigators did not have enough informa- Many of those aircraft might not have been put tion to piece together what the root causes might in harm's way had there been a CVR or a 21st cen- be. In October 1947, a United DC-6 became the tury FDR to record what really happened to the next victim of in-flight fire resulting in a crash downed aircraft, enabling a more timely identifi- near Bryce Canyon, Utah. Before they died in the cation of the cause and, most importantly, a viable crash, the pilots were able to communicate, via fix. However, more than a decade passed before their radio, enough detailed information about FDRs were mandated in commercial aircraft, and what was happening aboard the aircraft for inves- it was two decades before voice recorders were in- tigators to begin to piece together what was bring- troduced to provide the often crucial pieces to ing down so many of the new generation of pres- the aircraft accident puzzle. 2 4 surized aircraft. The next month, an American In response to the growing number of unsolved 2 5 DC-6 had a similar fire, but landed safely. aircraft accidents and the need for more informa- Based on the information provided by the tion to aid in accident investigations, the U.S. gov- 32 doomed United crew and the information derived ernment first mandated FDRs in the late 1950s, from the wreckage in the United and American and by 1964, CVRs were required in "large air- incidents, accident investigators determined that planes used by air carriers or commercial opera- 216 the problem was a design flaw in the fuel system. tors." The FAA's sole intent was to provide infor- Under certain circumstances, when fuel was trans- mation to aid aviation accident investigators in de- ferred between two particular fuel tanks, fuel termining the "cause and nature of the emer-

niques. Examples are the report of two DC-6 crashes in 1947, industry. See NATIONAL ARCHIVES & RECORDS ADMINISTRATION, which take up only 12 typewritten pages, and the report of RESEARCH RooM, RECORDS OF THE CIVIL AERONAUTICS BOARD the crash of TWA Flight 800 in 1996, which is 425 pages long. [CAB], at http://www.archives.gov/researchroom/fed- See CIVIL AERONAUTICS BOARD, ACCIDENT INVESTIGATION RE- eralrecords-guide/civil-aeronautics-board-rgl97.html PORT: UNITED AIRLINES, INC., BRYCE CANYON, UTAH, OCr. 24, (last visited Apr. 17, 2002). 1947, AMERICAN AIRLINES, INC., GALLUP NEW MEXICO, Nov. 29 See FEDERAL AVIATION ADMINISTRATION, A BRIEF HIS- 11, 1947, available at http://www.pr.erau.edu/-case/library/ TORY OF THE FEDERAL AVIATION ADMINISTRATION AND ITS PRED- reportsl/40.html (released Dec. 21, 1948) [hereinafter ACCI- ECESSOR AGENCIES, available at http://wwwl.faagov/in- DENT REPORT, BRYCE CANYON]; NTSB, ACCIDENT INVESTIGA- dex.cfm/apa/1271/21194882-E4F (last visited Apr. 17, TION REPORT: IN-FLIGHT BREAKUP OVER THE ATLANTIC OCEAN 2002). The Civil Aeronautics Administration ("CAA") was the TRANS WORLD AIRLINES FLIGrr 800, BOEING 747-131, N93119, forerunner of today's Federal Aviation Administration NEAR EAST MORICHES, NEW YORK, JULY 17, 1996, at http:// ("FAA"). In the post-WWII era, the CAA was a branch of the www.ntsb.gov/ptLblictn/2000/AAR0003.pdf (released Aug. Department of Commerce and was responsible for air traffic 23, 2000). control, certification of pilots and aircraft, safety enforce- 22 See generally HOPKINS, supra note 20. ment, airway development and the administration of a finan- 23 See id. at 179-80. cial assistance program designed to promote development of 24 Id. at 179. civil . Id. 25 Id. at 180. 0 HOPKINS, supra note 20, at 180. 26 Id. at 179. 31 Id. 27 Id. 32 See George Hayllar, The Histoly of Flight Data Recorders 28 See generally ACCIDENT REPORT, BRYCE CANYON, supra ('I7)Rs), available at http://www.bath.ac.uk/-en8gkh/ghis- note 21. The Civil Aeronautics Board ("CAB") was the prede- tory.htm (last visited Apr. 17, 2002). cessor to the NTSB responsible for accident investigation and '3 Installation of Cockpit Voice Recorders in Large Air- safety promotion. These functions were transferred to the planes Used by an Air Carrier or Commercial Operator, 29 NTSB at its creation in October 1966. The CAB was abol- Fed. Reg. at 8401. ished in 1985 in the wake of the deregulation of the airline 2003] "Privileged Communications?" gency." 3 4 This intent was made even clearer just ory chips instead of tape, and can hold two hours 40 prior to implementation: of sound in digital format. The [FAA] agrees that its only purpose in requiring the Cockpit voice recorders are built to withstand recorded information is to assist in determining the incredible extremes of impact shock, temperature cause of accidents or occurrences, and that the infor- and pressure. 4' The typical modern CVR must be be with the in- '42 mation should used only in connection force of 3400 "G." ... and not in a able to sustain an impact vestigation of accidents or occurrences3 5 civil penalty or certificate action. They must also be able to withstand a fire of 1100 Cockpit voice recorders, often referred to as degrees Celsius (2012 degrees Fahrenheit) for at "black boxes," 36 come in several versions, depend- least 30 minutes and remain undamaged to a ing largely on their date of manufacture and the depth of 20,000 feet underwater. The specifica- tions also call for an underwater locator beacon FAA specifications at the time. Traditional CVRs 43 typically record continuously on a loop of mag- capable of operating continuously for 30 days. netic tape beginning at the CVR's activation prior to the checklists the pilot is required to go III. THE TENSION - POTENTIAL USES FOR through before engine start.3 7 It records informa- CVR RECORDINGS tion via an overhead microphone ("cockpit area microphone"), which captures voice conversation Along with the introduction of CVRs on U.S. as well as the ambient noises associated with the airliners, there also came four potential uses for movement of levers and switches, engines and their output: (1) accident investigation; (2) public other airplane components. 38 It also collects in- airing by the media; (3) litigation; and (4) crimi- formation directly from the pilots' headsets so nal investigation and prosecution. The first was an that radio transmissions are included, and it col- intended use; the others were not. lects information from oxygen mask microphones so that communications will not be lost while pi- A. Accident Investigation lots are using the masks. The tape typically can hold 30 minutes of sound recording and, there- The value of CVRs became apparent from the fore, retains only the last 30 minutes or so prior to beginning of their use. On December 20, 1967, the recorder being shut down-either by being shortly after the mandate for CVR installation in turned off or because power was lost for another the domestic air fleet, 44 a Delta Airlines ("Delta") reason, such as a crash.3 9 The newest models in- DC-8 on a pilot training flight crashed during a corporate digital technology, recording on mem- practice emergency approach that simulated two

34 Installation of Cockpit Voice Recorders in Large Air- REVUE ONLINE, at http://www.flug-revue.rotor.com/FRheft/ planes Used by an Air Carrier or Commercial Operator, 28 FRH9908/FR9908d.htm (last updated July 12, 1999) [herein- Fed. Reg. 13786 (Dec. 18, 1963) (explaining that a number after Hess]. For comparison, the typical is limited to of accidents that at time were "characterized by sudden ex- about 2.5 G in flight; the most aggressive roller coasters exert treme emergencies, so that the flight crew could not commu- no more than about 4.5 G; an airplane occupant not accus- nicate with ground facilities. In those cases where the crew tomed to "pulling G" and not wearing a g-suit will black out did not survive, information they may have been able to give at between 5 and 6 G; modern fighter aircraft are limited to concerning the cause and nature of the emergency was about 9 G; and a 160 pound driver crashing into an immova- lost"). ble object at 30 miles per hour will sustain between 20 and 30 35 Installation of Cockpit Voice Recorders in Large Air- G, depending on whether the seatbelt he is wearing stretches planes Used by an Air Carrier or Commercial Operator, 29 or not. See Unofficial Guide to Six bags Over Georgia, Roller Coast- Fed. Reg. at 8401. ers, at http://zuben77.tripod.com/unofficialguidetosixflag- '36 "Black boxes" is a misnomer. To enable investigators sovergeorgia/id2.html; Hess, supra; Jeff Ethell, Jeff Ethell's to locate CVRs and their companion FDRS more easily in air- Pireps-F-16 Falcon, at http://www.airspacemag.com/asm/ craft wreckage, they most commonly are painted bright or- web/special/ethell/pirep6.htnl (last updated Apr. 20, ange or, sometimes, bright yellow. See 14 C.F.R. §§23.1457, 2001); HYPERPiHYSICS, FORCE ON DRIVER IN EXAMPLE CAR 1459 (2001). CRASH, at http://hyperphysics.phy-astr.gsu.edu/hbase/ 37 14 C.F.R. §91.609 (2001). carcr2.html (all last visited Apr. 17, 2002). 38 See COCKPIT VOICE RECORDERS AND FLIGHT DATA RE- 43 See COCKPIT VOICE RECORDERS AND FLIGHT DATA RE- CORDERS, supra note 1. CORDERS, supra note 1. 39 See id. 44 See Installation of Cockpit Voice Recorders in Large 40 See id. Airplanes Used by an Air Carrier or Commercial Operator, 41 See id. 29 Fed. Reg. at 8401. Cockpit Voice Recorders were required 42 One "G" is equal to the force exerted by gravity on a to be installed in all large jets byJuly 1, 1966 and in all large, body at rest. Christopher Hess, High-Tech Anti-G Suits, FLUG pressurized four-engine airplanes by January 1, 1967. Id. COMMLAW CONSPECTUS [Vol. 11

inoperative engines. 45 Based primarily on the of the flight.., the original CVR tape was pro- cockpit conversations extracted from the newly in- vided to the engine manufacturer for an analysis stalled CVRs, accident investigators were able to of engine-generated sound spectral frequency re- conclude that two of the principal reasons for the lationships. Several prominent resonances were accident were "errors in judgment by the captain- detected on the accident CVR tape."5 2 Sophisti- trainee and inadequate supervision and exercise cated analysis contributed to a better understand- of command on the part of the instructor."4, This ing of thrust requirements and thrust manage- is an example of the most basic type of analysis ment during the approach, demonstrating the expected to come from CVRs-being able to ana- wealth of additional information which may be lyze both the words spoken by cockpit occupants available on a CVR tape. and the context in which they are spoken. In this NTSB investigators used a similar analysis of the case, the trainee was a very experienced captain CVR tapes to help determine the likely cause of being trained to qualify to operate a new aircraft the crash of Air Florida Flight 90 on January 13, by another very experienced captain. 47 It was evi- 1982.5 3 The aircraft crashed into the 14th Street dent from the CVR recording that the training en- Bridge across an ice-covered Potomac River im- vironment was relaxed, probably because the mediately after takeoff from Washington's Na- 48 trainee and the instructor were essentially equal. tional Airport.54 Sound spectrum analysis of the This led the investigators to conclude that the in- CVR tape allowed analysts to determinate that the formal instructor-student relationship resulted in engines were not developing the thrust required a less attentive atmosphere than that which might for takeoff.5 5 This information promulgated fur- have prevailed had the trainee been less exper- ther tests at Boeing, the aircraft's manufacturer, 49 ienced. that demonstrated that the suspected icing of an The tones of the few suggestions given by the instructor engine sensor, called an engine inlet probe, re- were in a mild prompting manner. There appeared to sulted in an undetected reduced thrust in the be complete confidence in the student's ability to over- spectrum analysis had indicated. 56 come any problem, including the drastically reduced range that the airspeed. There was no apprehension manifest until Combined with the conversations recorded on

the captain-trainee himself recognized the loss 5of con- the CVR, this critical information allowed investi- was inevitable. 0 trol, at which point the accident gators to draw conclusions based on hard facts 5 7 Exactly a month before the Delta training acci- rather than mere speculation. dent, on November 20, 1967, a Trans World Air- Cockpit voice recorder tapes have also revealed lines ("TWA") Convair 880 four-engine passenger inadequacies in training and procedures. In 1974, jet crashed during its approach to the Greater a TWA 727 crashed into a ridge near Round Hill, Cincinnati Airport, located in Covington, Ken- Virginia in part because of a misinterpretation by 51 tucky. The investigation of this accident vividly the pilots of terminology. 58 As a demonstrated that CVRs could produce more result, the FAA changed its relevant air traffic con- than cockpit conversations. "In an effort to deter- mine engine power used during the latter stages

45 See 14 C.F.R. §121.424 (2001). Much airline training is TrUCiv, 18, available at http://Anelia.db.erau.edu/reports/ now conducted in high fidelity aircraft flight simulators ntsb/aar/AAR69-05.pdf (released Nov. 20, 1967) [hereinaf- tinder Appendix H to Federal Aviation Regulations Part 121 ter AIRCRAFr ACCIDENT REPORT, TRANS WORLD AIRLINES]. - Advanced Simulation, codified in 14 C.F.R. §121, app. H 52 See id.at 18. (2001), not only to save money, but to avoid exposure to acci- 53 See NTSB, AIRCRAFT ACCIDENT REPORT: AIR FLORIDA, 4 dents brought about by practicing emergency procedures in INC., BOEINc 737-222, N62AF, COLLISION WITH 1 TH STREET real aircraft. For example, windshear training is so inherently BRIDGE, NEAR WASHINGTON NATIONAL AIRPORT, WASHINGTON, dangerous that it is required only in simulators. Id. D.C., JAN. 13, 1982, available at http://www.airdisaster.com/ 46 See NTSB, AIRCRAFr ACCIDENT REPORT: DELTA AIR- reports/ntsb/AAR82-08.pdf (released Aug. 10, 1982). LINES, INC. DC-8, N803E, KENNER, LOUISIANA, NTSB/AAR-67 54 i.at 5. AG, available at http://www.airdisaster.com/reports/ntsb/ 55 Id.at 80. AAR67-AG.pdf (released Dec. 20, 1967). 56 See id.at 23. 47 Id.at 15. 57 See id. 48 Id. 58 See NTSB, AIRCRAFT ACCIDENT REPORT: TRANS WORLD 49 Id. AIRLINES, INC., BOEING 727-231, N54328, BERinVILLE, VIR- 50 Id. cINIA, DEC. 1, 1974, 1, available at http://ameilia.db.erau. 51 See NTSB, AIRCRAvI' ACCIIWFNT REPORT: TRANS WORLD edu/ reports/ntsh/aar/AAR75-16.pdf (released Nov. 26, AIRLINES, INC., CONVAIR 880, N821TW, CONSTANCE, KEN- 1975). 2003] "Privileged Communications?" trol procedures. 59 2. Back Toward Original Intent.

The legislation, an amendment to a five-year ex- 65 1. Straying From Original Intent tension of the Aviation Insurance Program ("war risk insurance program"), requires the Just as the requirement for installation of CVRs NTSB to withhold CVR recordings and transcripts became effective, Congress passed the Freedom associated with ongoing accident investigations. of Information Act ("FOIA") ,60 which made much The NTSB is then required to make relevant por- government-held information accessible to the tions of the transcriptsavailable to the public at the general public. In its original incarnation, the Board's public hearing, but no later than 60 days FOIA envisioned a pro-disclosure bias by limiting after the accident or after CVR recovery, which- exemptions: ever is later.66 The clear intent was to give the Nothing in this section authorizes withholding of infor- NTSB an undisturbed 60-day window to assess the mation or limiting the availability of records to the pub- lic except as specifically stated in this section, nor shall contents of the CVR tapes before the "relevant this section be authority to withhold information from and pertinent" portions of the transcript are re- 6 1 67 Congress. leased to the public. This bias in favor of disclosure has been echoed This legislation did not quell premature leaks repeatedly in court opinions. 62 With the enact- of transcripts or copies of the tapes themselves. In ment of the FOIA and increased interest on the 1987, even before the NTSB's CVR group had its part of the media, the floodgates were opened. As first meeting,6 the New York Times published ex- one commentator noted: cerpts of CVR data from a Northwest Airlines acci- [T]he use of CVR information began to broaden be- dent in Detroit.69 In addition, at least one state yond what was originally contemplated ....Portions of court made a CVR tape available through discov- CVR transcripts began appearing in the news media, on its use. 76 which resulted in premature speculation and misinfor- ery without placing a protective order mation as to the cause of the accident. Often the tran- As a result, the tape, intended solely for use in ac- scripts that were published, while perhaps interesting cident investigations, found its way outside this or sensational, had no relevance whatsoever to the acci- dent. Such media stories often resulted in unwarranted realm. In one of the more egregious misuses of a and unfair accusations being made against [those] in- CVR tape, a Texas state court ordered the release volved in the accident.6 of a tape through discovery. The tape ended up in In 1982, in response to this divergence from the the hands of the local news media and was ulti- original intent for the use of CVR recordings, mately picked-up and aired by the national affili- 71 Congress passed legislation intended to rein in ate. the abuses while ensuring that the public still had In the midst of this tug-of-war are the pilots. 64 access to pertinent information. Their conversations are recorded on the CVR

59 Id. volving flight crew communications that are associated 60 5 U.S.C. §552 (2000). with accidents investigated by the Board. The Board is 61 See S. Res. 1160, 89th Cong. (1966) (enacted), available required to make available to the public those portions at http://gwu.edu/-nsarchiv/nsa/FOIA/FOIAACT66.pdf of the transcriptions of such communications that the (last visited Apr. 17, 2002). Board deems relevant and pertinent to the accident, at 62 See, e.g., Nat'l Labor Relations Bd. v. Robbins, 437 U.S. the time of the Board's public hearing on the accident, 214, 220 (1978) (quoting Dep't of Air Force v. Rose, 425 U.S. and in any event no later than 60 days following the acci- 352, 361 (1976)) (stating that the FOIA's "'basic policy' is in dent. In the event that the CVR is not recovered immedi- favor of disclosure"). ately after the accident, the conferees intend that the 63 James W. Johnson, Cockpit Voice Recorder: Solely For Acci- Board have 60 days after recovery of the CVR before re- dent Investigations, LITIGxION IN AVIATION, 1991, A.B.A. SEC. lease. The conferees emphasize that this amendment TORT & INS. PRAc-r. & DIv. FOR PROF'L. EDUC., §C at 3 [here- would not affect the Board's current practice of sharing inafter Johnson]. CVR information with parties to the investigation. Id. 64 Independent Safety Board Act Amendments of 1982, 66 Id. Pub. L. No. 97-309, 96 Star. 1453 (1982) (codified as 67 Id. amended at 49 U.S.C. §1905 (1990)). Title 49 has been par- 68 SeeJohnson, supra note 63, at 4. tially revised, placing CVR restrictions in a new section. The 69 See NTSB, NTSB ACCIDENT SUMMARY DCA87MA046: current citation is 49 U.S.C. §1154 (2001). NORTHWEST AIRLINES, INC. ACCIDENT ON JULY 16, 1987 AT 65 See H.R. CONF. REP. 97-864, at 3 (1982), reprinted in ROMULUS, MI, at http://www.ntsb.gov/ntsb/brief.asp?ev-id= 1982 U.S.C.C.A.N. 3042, 3043. This provision states: 20001213X31759&key=l (released Aug. 1987). [Tihe [NTSB] shall withhold from public disclosure 70 SeeJohnson, supra note 63, at 4. cockpit voice recorder recordings and transcriptions in- 71 Id. at 5. COMMLAW CONSPECTUS [Vol. 11 tapes. While initially reluctant to become the sub- tional impact such action may have on that or any jects of eavesdropping, pilots recognized the ben- future investigations." 77 The United States has efits reaped in accident investigations and were filed "differences" to the ICAO policy to reflect 7 8 eventually won over with assurances that the CVR current U.S. law. tapes would be used solely for this purpose.72 As In New Zealand, in response to a successful po- early as 1969, the Executive Board of the Air Line .lice warrant to seize the CVR from a 1995 aircraft Pilots Association ("ALPA"), which represents the accident,79 the government enacted new law re- majority of airline pilots in the United States, en- flecting the ICAO policy by protecting products of dorsed the use of CVRs, with the proviso that their flight recorders and the privity of accident investi- use be limited to accident investigators. 73 At the gations.80 The law limits use of recorders to acci- same time, ALPA continued to reaffirm "its long- dent investigations, prohibits their use in legal or standing position in opposition to the use of air- administrative proceedings and prevents their use craft crash recorders and cockpit voice recorders by the media.8 1 The legislation was forward look- for purposes other than accident investigation. 74 ing because it included emerging technologies In addition to Congress, the FAA, NTSB and a such as cockpit video recorders.8 2 Current U.S. majority of U.S. pilots, many in the international law proscribes a similar release of video record- aviation arena share this view. The International ings,8 even though video recorders are not yet re- Civil Aviation Organization ("ICAO") is a special- quired in .8 4 The International Federa- 7 ized agency of the United Nations, 5 formed "to tion of Air Line Pilot Associations ("IFALPA") also secure international co-operation . . . [in the] endorses the use of CVRs under conditions very 8 5 highest possible degree of uniformity in regula- much like those permitted in the U.S. tions and standards, procedures and organization Why should the pilot's opinion matter? Why regarding civil aviation matters. 7 6 The ICAO's should society need a pilot's "permission" to re- policy is that records, including specifically "cock- cord their professional activities? The answer is pit voice recordings and transcripts from such re- that CVRs, while serving a vital function when cordings," are not available "for purposes other used as intended, can also constitute an otherwise than accident or incident investigation, unless the unwarranted intrusion on an individual's expecta- appropriate authority for the administration of tion of privacy in the workplace. The Supreme justice in that State determines that their disclo- Court has held that even a public employee has "a sure outweighs the adverse domestic and interna- reasonable expectation of privacy in his office,"86

72 AIR LINE PILOTs ASSOCIATION, INT'L-ADMINISTRATIV], DHC-8 twin turboprop aircraft enroute to Palmerton North MANUAL, SECTION 80-ENGINEERING AN) AIR SAFETY, 80-71 on New Zealand's North Island crashed into a ridgeline dur- (October 2001). ing an instrument approach while the pilots were 73 Id. troubleshooting a malfunctioning landing gear. Four passen- 74 Id. at 80-72. gers and the were killed. At the same time 75 See INTERNATIONAL CIviL AVIATION ORGANIZATION, CHI- the New Zealand Government Transport Accident Investiga- CAGO CONVENTION, at http://www.icao.int/cgi/goto.pl?icao/ tion Commission was investigating the accident, the police en/history.htm (last visited Apr. 17, 2002). sought and obtained the CVR tape as part of an investigation 76 INTERNATIONAL CIVIL AVIATION ORGANIZATION, FOUN- to determine if the pilots were criminally liable in the opera- DATION OF THE INTERNATIONAL CIVIl. AVIATION ORGANIZATION tion of the aircraft. At the time, CVRs were not even required (ICAO), at http://www.icao.int/icao/en/ro/eurnat/his- in New Zealand. Id. tory02.htm (last visited Apr. 17, 2002). 80 1d. 77 See ANNEX 13 TO TIE CONVENTION ON INTERNATIONAL 81 Id. AVIATION, AIRCRAFT ACCIDENT AND INCIDENT INVESTIGATION 82 See NEW ZEALAND AIR LINE PILOTS ASSOCIATION, NEW §5.12 (International Civil Aviation Organization, 9th ed. ZEALAND HAS NEW AIR SAFETY LAW,at http://www.nzalpa.org. 2001). nz/cgi-bin/nzalpa/display?filename=technical/newlaw.html 78 The most recent differences were submitted by the &bground (last visited Apr. 17, 2002). U.S. to reflect U.S. differences with the Ninth Edition of AN- 83" See 49 U.S.C. §1114(c)(1) (2000) (stating that the NEX 13 TO THE CONVENTION ON INTERNATIONAL AvIATION, "Board may not disclose publicly any part of a cockpit voice which became effective November 1, 2001. See Memorandum or video recorder recording or transcript of oral communica- to the Secretary General of the International Civil Aviation tions by and between flight crew members and ground sta- Organization (Nov. 1, 2001) (on file with this author) (de- tions related to an accident or incident investigated by the lineating the differences between the Ninth Edition of AN- Board"). NEX 13 TO THE CONVENTION ON INTERNATIONAL AVIATION and 84 See id. specific U.S. regulations and practices). 85 See INTERNATIONAL FEI)ERATION OF AIR LINE PILoTs, 79 See Capt. Paul McCarthy, Kiwis, CLOP, and the CVR, AIR POLICY MANUAL, §5.7.3. LINE PILOT, Jan. 2000, at 22. On June 6, 1995, an Ansett 86 See O'Connor v. Ortega, 480 U.S. 709, 718 (1987). 20031 "Privileged Communications?" and, to a professional pilot, the cockpit is their of- But, notwithstanding the benefits of CVRs, the fice. Pilots have acquiesced to having that privacy medical community is aware of the problems that invaded by a CVR, but only for the purpose of ac- have followed CVRs into the cockpit; the results cident investigation. would be the same if CDRs were used to monitor When the subject of CVRs comes up in discus- physicians' activities. An article for the Health sions among pilots, a comparison inevitably arises Law and Policy Institute at the University of Hous- with the medical community, which, for example, ton Law Center sums up the problems that would has no mandatory recorders in the operating accompany introduction of CDRs to medical facil- room. Within the period 1982-2000, the year 1996 ities. posted the highest number of deaths caused by One potential problem with the widespread use of aircraft accidents in scheduled U.S. air carrier ser- CDRs is that the information collected could be used 87 for purposes other than improving medical quality and vice. There were three fatal accidents, causing assuring patient safety. The information collected the deaths of 342 persons.88 None of the acci- could be used to promote medical malpractice suits. Pa- dents were attributed to pilot error.8 9 In contrast, tients who are not satisfied with a surgical outcome could potentially build a lawsuit around the informa- 9 4 a study published in 2000 by the National Acad- tion contained in CDRs. emy of Sciences ("NAS") estimated that between a result, health care workers would be unlikely 44,000 and 98,000 people die annually in the As United States from medical errors that occur in to embrace CDRs monitoring them, despite bene- to patients. The medical community would hospitals. 90 The study also acknowledged that the fits fear misuse of the tapes and unauthorized inva- aviation industry must be doing something right sions of their privacy. because by the early 1990s, "the U.S. airline fatal- ity rate was less than one-third the rate exper- In a recent article touting the dramatic poten- ienced in mid century. In 1998, there were no tial benefits of re-creations and animations in the deaths in the United States in commercial avia- courtroom, Richard Schaden dramatizes the im- tion."9' Faced with these statistics, pilots wonder pact of tools like CVRs and CDRs. why they have had to give up their privacy while On final approach, a 737 rolls out of control and dives into the ground, killing all aboard. A plane with no hy- members of the medical community have not. draulic control attempts a high-speed emergency land- The NAS study does not discuss the possibility ing. As the plane touches down, it begins to cartwheel of recording devices for the medical community, and the plane rips apart into fiery shards of wreckage. These words inspire powerful and tragic images, but but others have thought of it. For instance, in none so powerful as a re-creation of the last five min- London, a prototype Clinical Data Recorder utes of the flight, accompanied by the actual audio from the ("CDR") is being used in an experimental operat- cockpit voice recorder.The video depicts the breakup of a 92 plane, followed by actual footage of the crash shot by ing theater at Imperial College. 9 5 " an amateur photographer at the scene. In the same way that flight recorders monitor vital data that can help accident investigators identify the cause There is no doubt that this type of description of aircraft crashes, the operating theatre "black box" would have a very dramatic impact in the court- would record who was present and what they were do- room and that many attorneys would relish the ing, monitor patients' vital signs, equipment being used, record conversations, and track personnel and chance to have actual CVR audio and even video 6 even individual hand movements.9 3 available for their own use.1 Airline pilots, how-

87 See NTSB, TABLE 6: ACCIDENTS, FATALITIES, AND RATES, (1999)). 1982 THROUGH 2001, FOR U.S. AIR CARRIERS OPERATING 92 See Black Box for Operating Rooms, REUTERS HEALTH, UNDER 14 C.F.R. 121, SCHEDULED SERVICE (AIRLINES), at Aug. 25, 2001 available at http://www.drkoop.com/dyncon/ http://www.ntsb.gov/aviation/Table6.htm (last visited Apr. article.asp?at=N&id=13137 (last visited Apr. 17, 2002). 17, 2002). 93 Id. 88 See NTSB, AVIATION: ACCIDENT DATABASE & SYNOPSES, 94 joseph J. Wang, Black Boxes in the O.?, at http:// at http://www.ntsb.gov/NTSB/query.asp (last visited Apr. www.law.uh.edu/healthlawperspectives/MedicalProfession- 17, 2002) (providing a searchable database containing infor- als/01 1004Blackbox.html (Oct. 4, 2001). mation about civil aviation accidents and selected incidents 95 Richard F. Schaden, Making Them fly: Re-Creations and from 1962 to the present). Animations in Aviation Litigation, in 2 Assoc. of Trial Lawyers 89 See id. of America (ATLA)-CLE 1733 (2001) (this article was in- 90 See INSTITUTE OF MEDICINE, To ERR IS HUMAN: BUILD- cluded in the Annual Convention Reference Materials for ING A SAFER HEALTH SYSTEM (Linda T. Kohn et al. eds., 2000). ATLA's Section) (emphasis added). 91 Id. at 5 (citation omitted) (citing DONALD M. BERWICK 96 The accidents alluded to above were real accidents & LUCIAN L. LEAPE, REDUCING ERRORS IN MEDICINE 136-37 that occurred at a time when actual CVR audiotapes were not COMMLAW CONSPECTUS [Vol. 11 ever, are disturbed by such possibilities. It is po- strictly for accident investigation, and the realiza- tentially their dying words that would be broad- tion that, if a fair judicial proceeding cannot be had cast in the courtroom for their families and, without them, access to the information should be 1 shockingly, their local television affiliates to hear. limited. i1 2 Not everyone understands this balanc- That was not the original intent of pilots' acquies- ing test. For example, one commentator believes cence to the introduction of CVRs into their cock- that requiring the NTSB to release transcripts cre- 9 7 pits. ates "an enormous loophole" by making them dis- In order to preserve the pilots' expectations of coverable. "' This perspective fails to recognize privacy, and to restrict use of CVR tape recordings the very strict language that governs discovery. 104 to their originally intended use, Congress Moreover, information of real use is already avail- amended the Independent Safety Board Act able in the NTSB's public docket; hearing the re- ("ISBA") in 1990, formulating a bright line rule to cording in chambers is not likely to enrich discov- clearly define the permissible uses of CVRs and ery. their products.118 When he signed the 1990 ISBA changes into law, President George H.W. Bush commented 3. The Bright Line Rule that "[i]t is important to protect these materials from sensationalism and unwarranted disclosure, Congress' intent in adopting the new amend- but it is also important that courts provide prompt ment was to "restrict the ability of litigants to mis- and complete disclosure to litigants with an inter- use the recording or transcription in a lawsuit by est in judicial proceedings involving aircraft acci- setting standards for discovery. ' 19 Thus, the law dents."' 5 Given the strict constraints put on dis- severely restricts access to CVR tapes and tran- covery of CVR tapes and the non-public portions scripts outside the realm of accident investiga- of their transcripts, it is facially apparent that tion.'1 Litigants are granted access to tapes only "prompt and complete disclosure" is not part of if a fairjudicial proceeding cannot be had without Congress' intent. them and then only with a limiting protective or- The ISBA amendments' additional restrictions der."1 Being balanced is the promise that the in- foreclose access to information through the formation gathered in the cockpit would be used FOIA. Despite the FOIA's pro-disclosure bias, 1°6 as strictly controlled as they are now. See id. In two incidents outlined in testimony before the Com- 97 See O'Connor,480 U.S. at 718. mittee ... the transcription in one case and the record- 98 See Independent Safety Board Act Amendments of ing in another case were released to the public in an 1990, Pub. L. No. 101-641, 104 Stat. 4654 (1990) (codified as inappropriate manner. All parties to an accident investi- amended at 49 U.S.C. App. 1905 (1990)) [hereinafter ISBA gation recognize both the rights to privacy of the individual Amendments of 1990]. Title 49 has been partially revised, crewmembers and the need to conduct a fair investigation. placing these restrictions in a new section. The current cita- This section seeks to maintain a balance between those tion is 49 U.S.C. §1154 (2000). interests. The section is not intended, however, to re- 99 See Id. strict the parties to the investigation in any way from ac- This amendment limits release of CVR information, speci- cess to the CVR information, prior to public disclosure, fies when it can be released, and permits discovery of the for purposes of the investigation. transcription and recording only in certain limited circum- Id. at 104 Stat. 6381 (emphasis added). stances. Section 306 of the Independent Safety Board Act i00 This is more in line with the original intent of the law provides that CVR recordings and transcripts are not to be governing CVRs. See Installation of Cockpit Voice Recorders released, except that portions of the transcriptions of oral in Large Airplanes Used by an Air Carrier or Commercial communications by and between the flight crew members Operator, 29 Fed. Reg. at 8401. and ground stations are to be made available to the public at 101 See ISBA Amendments of 1990, 104 Stat. 4655. the time of the public hearing or no later than 60 days follow- I02 Id. ing an accident or incident tinder investigation. The amend- 03 Donald C. Massey, Proposed On-Board Recordersfor Mo- ment also changes section 306 to restrict the ability of liti- tor Carriers:Fostering Safer Highways or Unfairly Tilting the Litiga- gants to misuse the recording or transcription in a lawsuit by tion Playing Field?, 24 S. ILL. U. L.J. 453, 461 (2000). setting standards for discovery and requiring that, if discovery 104 See H.R. CONF. REP. 97-864, at 3043. The "enormous of non-public portions of a recording or transcript is ob- tained, a protective order limiting the use of the information loophole" is not a loophole at all, but is in concert with the to that proceeding must be issued. It also prohibits dissemination original intent to treat actual recordings differently than of the recording or portion to anyone who does not need the informa- transcripts and other data. tion for the proceeding. This provision is intended to eliminate the 1 5 See President's Signing Statement, ISBA Amendments use of such information except to ensure that litigants are able to of 1990, 104 Stat. 6381-1. receive a fair trial. 1(6 See Robbins, 437 U.S. at 220. 2003] "Privileged Communications?" the 1990 ISBA changes fit precisely within one of willing to tolerate the invasion of their privacy in the FOIA exemptions."' 7 The mandate to disclose the interests of public safety. But they are not will- information under the FOJA does not apply to ing to tolerate an invasion so that their loved ones matters that are: "specifically exempted from dis- can hear their dying screams on the evening 110 closure by statute . . . provided that such statute news, or so that their grieving survivors can be (A) requires that the matters be withheld from sued for the pilots' alleged negligence. Over time, the public in such a manner as to leave no discre- however, portions of the transcripts germane to tion on the issue, or (B) establishes particular cri- an accident are released to the public, including teria for withholding or refers to particular types the media' and interested attorneys. Little, if of matter to be withheld."''° Thus, CVR record- anything, is gained by this wider distribution. ings cannot be reached via a FOIA request. In the aftermath of a Delta 727 crash in Dallas on August 31,.1988, a Texas state court ordered the release of the CVR tape through discovery.' 12 B. Their Dying Utterances It ended up being played on the evening news'" Congress has twice revisited the original legisla- and, more recently, has been available on the In- tion in order to restrict the use of CVR tapes and ternet. The airing of the tape on the evening news transcripts to the originally stated purpose of air- preceded the ISBA amendments in 1990, which craft accident investigation. The FAA does not use placed tighter restrictions on the release of CVR CVRs to extract civil penalties;" 9 discovery is tapes and, in fact, is what gave rise to those strictly limited to circumstances where a fair judi- amendments.' 4 To the horror of survivors, how- cial proceeding cannot be had without them; and, ever, some tapes still find their way to the public. the FOIA further limits the availability of CVR in- Foreign governments' accident investigations formation. Nevertheless, there is still an issue of often are not as restricted as those of U.S. agen- disclosure that lies outside the area of accident in- cies,I 15 and this can result in release of a CVR tape vestigation. Simply stated, pilots and others are to unintended recipients. Following the crash of

107 See Rose, 425 U.S. at 361 (emphasizing that the FOIA Under threat of lawsuits from the surviving relatives, the exemptions must be narrowly construed). FBI played the CVR tapes for family members on April 18, 108 5 U.S.C. §552(b) (3) (2000). 6 0 2002. See David Snyder, FamiliesHear Flight 93's FinalMoments, 109 14 C.F.R. §91. 9(g) (2000) (applying to flight oper- WASH. POST, April 19, 2002 at A3. It remains to be seen if ations in general); 14 C.F.R. §121.359(h) (2000) (applying to family members listening to cockpit events in the final mo- air carrier operations). ments of Flight 93 heard anything that will contribute to the 110 Families normally are not privy to CVR tapes, but in investigation or whether it merely whet the appetites of rela- the aftermath of the crash of United Flight 93 in Penn- tives of future victims and thereby opened a Pandora's box. sylvania on September 11, 2001, some family members asked Id. to hear the CVR tapes. The FBI-not the NTSB-agreed to III The media's use of CVR transcripts is not limited to it. SeeJohn Curran, FBI to Let Relatives of light 93 Victims Hear news reporting and analysis. The 1998 book, The Black Box: Cockpit Recordings, CHArTTANOOGA TIMES/CHATANOOGA FREE All-New Cockpit Voice Recorder Accounts of In-flight Accidents, ed- PRESS, Mar. 26, 2002, at A5: ited by Malcolm MacPherson and published by Qtill, is an "I don't know what I'm going to hear, but I need to hear updated compilation of CVR transcripts which the publisher it," said Patrick Welsh, whose 49-year-old-wife, Deborah, touts as providing "a heartbreaking, second-by-second ac- was the lead flight attendant on board. "It's going to be a cotnt of intense fear tempered by unyielding professional- horrific thing to listen to. In some ways it may appear ism." See HARPERCOLLINS.COM, THE BLACK Box: ALL-NEW almost masochistic, after what all of us have been COCKPIT VOICE RECORDER ACCOUNTS OF IN-FLIGHT ACCIDENTS, through. But you're trying to find a truth, trying to get at http://www.harpercollins.com/catalog/book_xml.asp? some more information about the events." isbn=0688158927 (last visited Oct. 30, 2002). Sarah Vowell, a reviewer of the book says, "I confess, as a fan of detective The National Transportation Safety Board, which inves- novels and detective movies and detective TV shows, I find tigates aviation accidents, has never allowed relatives to the question of how someone dies inherently fascinating. As listen to cockpit tapes, spokesman Ted Lopatkiewicz an audiophile, the very idea of recordings that offer the sound said. Under federal law, the safety board cannot release of death is wildly titillating." Sarah Vowell, American Squirm: the tapes and can only give out transcripts during a pub- Fear of Flying, SALON.COM, at http://archive.salon.com/ent/ lic hearing or when a majority of factual reports on the music/vowe/1998/08/24vowe.litnil (last visited Apr. 17, crash are completed, Lopatkiewicz said. 2002) (emphasis in original). 112 SeeJohnson, supra note 63, at 5. Welsh lauded the government's decision, saying it bal- ''3 Id. anced family members' right to know with privacy con- 114 Id. siderations. 115 See Press Release, Air Line Pilots Associ:,ti(iI, Pilots Angered Over Use of Cockpit Voice Recorder on "Dateline: COMMLAW CONSPECTUS [Vol. 11 an American 757 during an approach into Cali, Some are innocuous, but some are grisly and not Colombia on the night of December 20, 1995, an for the faint of heart. agency of the Colombian government conducted Bolstering the privacy interest argument are the post-crash investigation with technical assis- two cases from the United States Court of Appeals tance from the NTSB.1 6 Somehow, a copy of the for the District of Columbia Circuit ("D.C. Cir- CVR audio tape ended up in the possession of the cuit"). Section (b) (6) of the FOIA permits with- NBC television network, which, despite requests holding of "personnel/medical and other files not to do so, aired portions of the tape as part of a disclosure of which would violate personal pri- story on their program, Dateline:, on January 19, vacy." 12 5 Drawing from this wording, the D.C. Cir- 2000.117 Since the NTSB is prohibited from releas- cuit held that the release of an autopsy report by ing CVR tapes1 and courts are severely restricted the Air Force would "shock the sensibilities of sur- from allowing their use in discovery,' 19 the tape viving kin" 12 6 and "constitute a 'clearly unwar- apparently had been obtained from an unofficial ranted invasion of personal privacy.' "127 source, leaving no method to prevent its broad- Six months after the destruction of the space cast. The airing of the tape was criticized by then shuttle Challenger in 1986, which killed all seven NTSB Chairman Jim Hall.' 2 0 Hall's criticism was astronauts aboard, a reporter from the New York echoed by the Allied Pilots Association Times submitted a FOIA request to NASA for tran- ("APA"), 1 2 1 which represents the American pilots, scripts and copies of all voice and data communi- and by ALPA. 122 The Cali accident is discussed in cations recorded on the ill-fated shuttle. In New more detail below. York Times v. National Aeronautics and Space Admin- There is also the issue of CVR ownership. At the istration,'2 the reporter argued that the public 12 completion of an investigation, the CVR tape is re- had a "strong interest"' 9 in disclosure because it turned to the aircraft's operator.125 While statutes was "the best available record of governmental ac- restrict what NTSB and the courts may do with tivity" aboardthe Challenger in the moments just the CVR tape, 124 there are no such restrictions on prior to the accident.""' The reporter also argued the tape's owner. Universal access afforded by the that the public "has a strong and legitimate inter- Internet then becomes an issue. If a person enters est in gaining a full understanding of the disaster, the appropriate search criteria into any compe- and of the conduct of the agency and its employ- tent Internet search engine, he will find a number ees in the events and activities during and after of Web sites that have actual CVR recordings. that incident."'' The trial court ordered the release of the

NBC", at http://cf.alpa.org/internet/news/2000news/ What 'Dateline: NBC did was outrageous and absolutely nr00005.htm Uan. 19, 2000) (last visited Oct. 30, 2002) inexcusable. This is every airline pilot's worst nightmare, [hereinafter Pilots Angered Over Use of Cockpit Voice Re- to have what often turns out to be the last few minutes of corder on "Dateline: NBC"]. his life made public, not for any advancement of aviation 116 See Press Release, NTSB, Columbian Press Release- safety, but as an exploitative and sensationalistic public Factual Data Aircraft Accident Investigation (Dec. 28, 1995), spectacle on the airwaves. Id. at http://www.rvs.ini-bielefeld.de/publications/lncidents/ 12-3 See NTSB INVESTIGATOR'S MANUAL, VOL. III - RE- DOCS/ComAndRep/Cali/cali-prelimreport.html (last vis- GIONAL INVESTIGATIONS, at 3-148, available at http://ame- ited Oct. 30, 2002). lia.db.erau.edu/onlinebkutp/1181.3.pdf (last visited Oct. 23, 117 Id. 2002) [hereinafter INVESTIGATOR'S MANUAL]. 118 See 49 U.S.C. §114(c) (1994). 12'l See 49 U.S.C. §1154 (1994). 1'9 See 49 U.S.C. §1154 (1994). I25 5 U.S.C. §552(b)(6) (2000). (emphasis added). The 121 See Press Release, NTSB, Statement by NTSB Chair- FOIA at section 552(b) (3) also exempts from disclosure any- man Jim Hall on Broadcasting of Cockpit Voice Recorder thing specifically exempted by statute "provided that such Tape (Jan. 19, 2000), at http://www.NTSB.gov/Pressrel/ statute (A) requires that the matters be withheld from the 2000/000119.htm (last visited Oct. 30, 2002). Hall stated, public in such a manner as to leave no discretion on the is- "The use of such a recording - however it was obtained - for sue, or (B) establishes particular criteria for withholding or such a purpose is inappropriate. It does nothing to advance refers to particular types of matters to be withheld." Id. the cause of , and only serves to sensationalize 12 Badhwar v. United States Dep't of Air Force, 829 F.2d a tragedy." Id. 182, 186 (D.C. Cir. 1987). 121 See ALLIED PILOTS ASSOCIATION, APA INFORMATION 127 Id. (emphasis added). HOTLINE, at http://www.alliedpilots.org/Public/Hotline/ 128 782 F. Supp 628 (D.D.C. 1991). prevhl.asp?id=20000120 (Jan. 20, 2000). 129 Id. at 632. 122 See Pilots Angered Over Use of Cockpit Voice Re- 14I ) i. corder on "Dateline: NBC," supra note 115. 1I1 1& 2003] "Privileged Communications?" tape. 132 After appeals and rehearings, the D.C. spoken in the cabin. Plaintiff does not dispute its accu- Circuit agreed that the public had a legitimate racy, but hypothesizes that information can still be in- gained from voice inflections and background noises. terest in learning about NASA's conduct, but held The extremely speculative and subjective nature of this that the tape's release would not further that in- additional information, if available, precludes any find- terest "in any way." 13 3 In so deciding, the court re- ing the information would "significantly contribute" to the public understanding of the Challenger disaster.14 o lied on a then recent Supreme Court opinion in which the Court upheld the FBI's refusal to dis- The Court thus found that the public interest in close the "rap sheet" of a private citizen under the disclosing the actual recordings was minimal or FOIA.'1 4 In United States Department of Justice v. Re- nonexistent. 141 porters Committee for Freedom of the Press,1 3 5 the Su- Having determined that releasing the CVR tape preme Court applied the following standard in would not contribute significantly to the public's holding that the public interest was insufficient to understanding of NASA or the Challenger acci- require disclosure: dent, the court next undertook a balancing test to The basic policy of "full agency disclosure ... focuses determine whether the disclosure of the tape on the citizens' right to be informed about 'what their govern- "would constitute a clearly unwarranted invasion ment is up to." Official information that sheds light on of personal privacy."'1 2 In doing so, the court fol- an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, lowed the precedent of O'Connor v. Ortega, which however, is not fostered by disclosure of information concluded that a person has "a reasonable expec- about private citizens that is accumulated in various tation of privacy in his office." 143 On one hand, governmental files but that reveals little or nothing about an agency's own conduct .... Indeed, response the National Aeronautics and Space Adminstration to this request would not shed any light on the conduct court held that the "'clearly unwarranted' lan- 13 of any Government agency or official. guage of the FOIA exemption 6 weights the scales The Court went on to reiterate that Congress's in favor of disclosure." 144 On the other hand, "core purpose" in creating the FOIA was to con- however, it determined that "where the privacy in- tribute "significantly to public understanding of terest is substantial, the public interest uncertain, 13 7 the operations or activities of the government." and where the agency has already released materi- In National Aeronautics and Space Administration, als responsive to the request, the balance tips to- the plaintiff argued that the "voice inflections and wards non-disclosure." 145 The court concluded: background noises which are contained only in The Challenger families have a substantial privacy interest the tape would 'contribute significantly' to the in non-disclosure of the tape. Plaintiff has asserted at best a public's understanding of the operations of speculative public interest in disclosure. NASA has 13s made a written transcript of the tape available to the NASA." The court found, however, that "any public. Thus, the Court determines that the privacy in- voice inflections and background noises [on the terest in non-disclosure clearly outweighs the public in- tape] ... might reveal something as to whether the terest.146 astronauts knew about the disaster and their im- Thus, the court held that no one outside the acci- pending deaths." This would not contribute "any- dent investigation scheme-at least no one from thing to the public's knowledge of how NASA op- the media-had a legitimate interest in hearing erates.' 39 The plaintiff needed to produce more the astronauts' dying utterances. This holding evidence to make the release of the tape worth- thus addresses the piloting community's privacy while under the FOIA standard. objections concerning the release of CVR tapes. The court did find it significant that NASA had Their other objection involves the problem that provided the public with a transcript of the tape. may arise from releasing CVR tapes to the legal 47 This transcript reveals to the public every word that was establishment. 1

132 New York Times v. Nat'l Aeronautics and Space Ad- 139 Id. (emphasis in original). min., 679 F.Supp 33 (D.D.C. 1987), vacated by 782 F.Supp 628 140 Id. (D.D.C. 1991). 141 Id. 133 Nat'l Aeronautics and Space Admin., 782 F. Supp at 632. 142 See5 U.S.C. §552(b)(6) (2000). 134 United States Dep't. of Justice v. Reporters Comm. 143 O'Connor, 480 U.S. at 718. for the Freedom of the Press, 489 U.S. 749, 773 (1989). 144 Nat'lAeronauticsand Space Admin., 782 F.Supp. at 633. 135 Id. 14" Id. 136 Id. (citations omitted) (emphasis added). 146 Id. (emphasis added). 137 Id. at 775 (emphasis in original). 147 See Installation of Cockpit Voice Recorders supra note 138 Nat'l Aeronautics and Space Admin., 782 F.Supp. at 633. 15, and accompanyig text. COMMLAW CONSPECTUS [Vol. 11

C. Litigation scent. 5 " The pilots were evidently unaware of how far off track they were and probably could Since Congress did not intend "prompt and see nothing outside the airplane in the dark of complete disclosure" of CVR tapes and unre- night. 54 The aircraft's Ground Proximity Warn- leased portions of transcripts, 4 how, then, do at- ing System ("GPWS") 155 warned them of the ap- torneys gain access to materials for litigation pur- proaching terrain too late. 15" The aircraft crashed 57 poses? It turns out that the readily available prod- 13 seconds later. ucts of both CVRs and FDRs are frequently used The Cali court relied heavily on the CVR tran- by both sides in litigation-often, with decisive re- script1 58 in entering summary judgment for the sults. Access to actual recordings is simply unnec- plaintiffs. essary. [O]ne of [the pilots'] grievous errors-their continued In the wake of American Flight 965's crash in descent from a position that was radically off course at night in an environment where the risk from high ter- the mountains near Cali, Colombia in 1995 that rain was palpable and profound-was so plainly reck- killed all but four people aboard, multiple liability less, so dangerous, so extreme a violation of the stan- claims arose against American and others. One dard of care and so directly responsible for the collision with the mountain-that even allowing the Defendant case against American, In re Air Crash Near Cali, every benefit of the doubt, the law requires that sum- Columbia on December 20, 1995, that involved the mary judgment be entered for the Plaintiffs on this ba- pilots' estates and American's parent company, sis alone. 159 made effective use of a transcription of the CVR Without the detailed information provided by the tape in a successful motion for summary judg- transcripts, a clear understanding of why this air- ment.1 49 plane crashed likely would never have been In Cali, the aircraft approached from the north, found. Moreover, proving liability would have and the pilots wanted to land to the south.'15 In been difficult, making summary judgment un- other words, the pilots wanted to land the plane likely.'"" Here, access to the actual tapes was un- straight ahead rather than by having to overfly the necessary because the transcripts were sufficient airport and turn back around, which would have to persuade the court to rule in the plaintiffs added several minutes to an already delayed favor. flight.' 5' The clearance for this approach came In an intriguing twist, the Cali court had access late in the arrival process, so the pilots had to ex- to two transcripts and the audio tape. The tran- pedite their descent.'.5 The CVR transcript shows script used by the plaintiffs in their motion was 6 that the pilots entered an incorrect navigation fix obtained from the NTSB,1 1 and the other was 62 into the computer, resulting in the aircraft turn- produced by an expert retained by American. ing east into mountainous terrain while in de- The record does not show how the court came

14" See 49 U.S.C. §1114(c) (2000). rections. Id. 149 985 F.Supp. 1106 (1997). 156 See Ca/i, 985 F. Supp. at 1122. 151 Id. at III. 157 See i. 151 Id. 158 Id. at 1115. "A great deal of our understanding of 152 [i. at 1118. what unfolded during the final minutes of Flight 965 is based 153 Id. at 1119. on the cockpit voice recorder ... [transcript]." Id. 154 i. at 1138. 159 Id. 155 See Honeywell International, Inc.'s Enhanced Ground Proximity Warning System (EGPWS), at http:// n60 Summary judgment is a "procedural device available www.egpws.com/ (last visited Oct. 24, 2002). The Web site for prompt and expeditious disposition of controversy with- provides one manufacttrer's informative descriptions of the out trial when there is no dispute as to either material fact or newest technologies available to warn pilots about impending inferences to be drawn from undisputed facts, or if only ques- controlled flight into terrain ("CFIT") and provides an audio tion of law is involved." BLACK's LAw DICTIONARY 1435 example of the aural warning. GPWS and its younger sibling (1990). See also, FED. R. Civ. P. 56(c). EGPWS provide cockpit warnings concerning approaching 161 See Cali, 985 F.Supp at 1115. The NTSB does not in- terrain. Older systems were triggered by either the aircraft's vestigate accidents nor produce CVR transcripts for the pur- height above terrain as measured by a radio altimeter or an pose of litigation, but the portions that are pertinent to an excessive rate of descent. The newest systems generate warn- accident investigation are made public in accordance with 49 ings by comparing present aircraft position to an onboard U.S.C. §1114(c), which states "the Board shall make public database of terrain elevations. Since the EGPWS systems any part of a transcript or any written depiction of visual in- "look" at the area in front of an aircraft and not just straight formation the Board decides is relevant to the accident or down, they can warn pilots of rising terrain in front of their incident." aircraft, thereby giving precious additional time to make cor- 162 i. 20031 "Privileged Communications?" into possession of the tape.' 63 Considering that tion that if the federal government is a litigant, the Colombian authorities, not the NTSB, conducted government might have an advantage in the case. this investigation, and that American Airlines The reality, however, is that while the tape is in ("American") was the owner of the CVR, 61 4 it is the government's possession, it is with the NTSB probable that the tape came from one of these for an accident investigation1 72 or the FBI for a 65 two sources. 1 criminal investigation,1 73 but is not available to Two issues arise from this twist of circumstance. other agencies not directly involved in the investi- 74 First, the audio recording's availability did not al- gation.1 ter the case's outcome. In fact, the opinion only The conundrum produced by the government's mentions the recording, which was played in possession of a tape is addressed tangentially in 166 chambers with both counsel present, when it the case, McGilvra v. National TransportationSafety discusses the differences between the two tran- Board, involving the crash of a United Airlines 737 scripts. 67 It appears that comparing the two tran- on March 3, 1991 while it was on approach to the scripts and the tape merely demonstrated that the airport in Colorado Springs, Colorado. 1 75 All of American-produced transcript benefited the air- those aboard were killed, including a relative of line, while the NTSB's transcript more accurately Jack McGilvra. 176 McGilvra sought a copy of the 68 reflected the recording. 1 This outcome supports CVR tape through the FOIA. 177 The NTSB re- continued reliance on transcripts produced by fused to release the tape, citing section 1905(c) of neutral experts and also argues against litigants' the Independent Safety Board Act.178 On appeal, discovery of recordings. the NTSB's Managing Director again denied re- The evidence provided by the CVR transcripts, lease of the tape.1 79 This last denial led McGilvra however, demonstrated American's liability to file suit in the Federal District Court in the Dis- clearly enough to support the motion for sum- trict of Colorado seeking a copy of the tape for 16 9 mary judgment. As American and the court accident reconstruction purposes.'8 ° McGilvra both learned, possession of the actual recording submitted three arguments to support his claim: did not provide any additional evidence, alter the (1) the statutory prohibition regarding NTSB re- dramatic story told in the NTSB transcript, or lease found in section 1905 of the ISBA' 81 was not change the case's outcome. a FOIA exemption; (2) the tape should be re- The second issue that arises in the context of leased pursuant to section 1903(d) (3) of the ISBA litigation involves access to the tapes. At the com- because it was necessary for a fair trial; and (3) pletion of an investigation, the tape is returned to that section 1905 of the ISBA was unconstitu- 1 7 182 the aircraft operator. 0 If one side in a case has a tional. copy of the tape, it would seem only fair that op- The court did not accept any of McGilvra's ar- ponents have access as well. In Cali, both sides evi- guments. 1 3 The court determined that the stat- dently had access to the CVR tape because it was ute qualified as a FOIA exemption. 84 Therefore, "reviewed in chambers and in the presence of it did not have the authority to grant discovery 1 7 1 counsel.' Barring a similar set of circumstances, under section 1905(d) (3) of the ISBA. where the recording apparently is released by an This court is not oblivious to the seeming unfairness of entity other than the NTSB, there can be a percep- the practical impact of the above cited statutes: to allow

163 See generally, Cali, 985 F. Supp. at 1153-54. 174 See INVESTIGATOR'S MANUAL, supra note 123, at 3-148. 164 See INVESTIGATOR'S MANUAL, supra note 123, at 3-148. 175 McGilvra v. Nat'l Transportation Safety Bd., 840 165 Cali, 985 F. Supp. at 1115. The court noted in its Or- F.Supp.100 (Colo. 1993). der that the differences between the transcripts were "gener- 176 See id. The published opinion does not describe ally of little moment" as determined by the judge after having plaintiff's relationship to the decedent, Paula McGilvra. Id. listened to the tape. Id. 177 McGilvra, 840 F.Supp. at 101. 166 Id. at 1140 n.21. 178 See ISBA Amendments of 1990, supra, note 98. 167 Id. 179 McGilvra, 840 F.Supp. at 101. 168 Id. at 1134 n.18, 1139 n.21. 180 Id. .19 Id. at 1153. 181 See ISBA Amendments of 1990, supra, note 98. (Title 170 See IN&ESTIGATOR'S MANUAL, supra note 123, at 3-148. 49 has been partially revised, placing these restrictions in a 171 Cali, 965 F.Supp at 1139 n.21. new section. The current citation is 49 U.S.C. §1154 (2000)). 172 See INVESTIGATOR'S MANUAL, supra note 123, at 3-148. 182 McGilvra, 840 F. Supp. at 101. 173 See NTSB Providing Technical Assistance to FBI In- 183 Id. vestigation, supra note 7. 184 Id. at 102. COMMLAW CONSPECTUS [Vol. 11

representatives of defendants in air crash cases access "newly discovered evidence" which was not sub- to CVR tapes in their capacities as parties designated to the Rule's one-year time limit. 95 participate in the investigation, while denying plaintiffs mitted within and their representatives and expert investigators equal The court also held that the ICAO report and the access to the facts. This argument, however, must be ad- information on the recorders supported the jury's dressed to Congress, not to a court where, as here, the guilty verdict, 196 and accordingly, it denied KAL's intent of Congress is clear.' H5 97 motion for equitable relief'1 Thus, the court recognized the government's le- While KAL could not avail itself of the informa- gitimate requirement to withhold a CVR tape tion available from the recorders, others could. from a plaintiff seeking it for litigation purposes. Eric Forman, the husband of a passenger killed Another case is also illustrative. During the on KAL Flight 007, made use of the data from the night of September 1, 1983, Soviet fighters shot CVR and FDR.' 981 In Forman v. Korean Air Lines, down Korean Airlines ("KAL") Flight 007, when it Forman was awarded damages for his wife's pre- strayed from its planned route into Soviet airspace death pain and suffering.199 The court reversed over the Sea of Japan.I1 ' The FDR and CVR were other jury awards. 110 Both KAL and Forman ap- recovered by Soviet authorities and held for al- pealedY.1 The D.C. Circuit upheld the award for 8 7 most a decade. Meanwhile, In re Korean Air the wife's pre-death pain and suffering. 202 This Lines Disaster of September 1, 1983, a consolidation decision was based largely on the information of some 190 cases, a jury returned a verdict that from the recorders,203 but no one had to hear the the 747's loss and the deaths of everyone on actual recordings to make the award determina- board were proximately caused by the willful mis- tion. 2 4 conduct of KAL Flight 007's pilots.' 88 The deci- The issue of passenger pre-death pain and suf- sion was upheld, but punitive damages were va- fering turned on a determination of whether or 89 cated pursuant to the . not those aboard the doomed airplane could have In October 1992, after the Soviet Union's col- survived the initial explosion caused by the mis- lapse, and more than nine years after KAL Flight sile.2115 Each side produced expert witnesses testi- 007 was shot down, the Russian Federation re- fying to support, their contentions that the occu- leased documentation surrounding the inci- pants of the airplane did or did not survive the dent. 9 This was followed by the release of the initial explosion and loss of pressurization long CVR and FDR from KAL 007, along with record- enough to have experienced any physical pain ings and transcripts of the conversations of the So- and suffering.206 While earlier cases were forced viet fighter pilots responsible for shooting down to rely on expert speculation, the Forman court the airliner.' 91 In June of 1993, based on this had the benefit of the information from the re- newly acquired information, ICAO issued a report corders. that shed some light on the events of September The ICAO report showed that the FDR contin- 1, 1983.192 Armed with this report, KAL filed a ued to run for at least 104 seconds after the mis- motion to vacate and set aside the earlier judg- sile's impact.2 0 7 No mention is made as to ment."gzl- The motion was denied under Federal whether the recorders stopped because the FDR Rule of Civil Procedure 60(b)(2)194 because the lost power or because the aircraft broke apart. recorders and their information were considered KAL argued that the missile must have blown a

185 Id. at 102 (emphasis added). 198 See generally Forman v. Korean Air Lines Co., 84 F.3d 186 See In re Korean Air Lines Disaster of September 1, 446 (D.C.Cir. 1996). 1983, 932 F.2d 1475, 1478 (D.C. Cir. 1991). 199 Id. at 448. 187 See In re Korean Air Lines Disaster of September 1, 2010 Id. 1983, 156 F.R.D. 18, 20 (1994). 2011 Id. at 447. 188 Korean, 932 F.2d at 1477. 202 Id. 189 Korean, 156 F.R.D. at 14. 2(13 Id. at 449. 190 1d. at 20. 191 Id. 204 Id. (explaining that expert testimony provided the 192 Id. requisite evidence for the court to make its determination. No mention is made of publicly playing the CVR audio 193 Id. 194 Id. tapes.). 195 Id. at 22. 205 Id. at 448. 196 iJ 206 Id. 197 Id. at 25. 207 Id. at 449. 20031 "Privileged Communications?" large hole in the fuselage, 20 8 thus equalizing the uncontrollable when it followed too closely to a pressure inside the cabin with the pressure Boeing 757.216 The results of the crash became outside at 35,000 feet, rendering the passengers the subject of Management Activities, Inc. v. United 20 9 unconscious and "thus anesthetized to pain." States.2" I The Westwind CVR transcript, used in a The CVR, however, "captured the flight crew's cross-claim action against the government alleg- post impact actions and utterances."' 21 0 Based on ing negligence by the FAA, indicated pilot er- this information, Forman's experts testified that ror.21 8 The opinion points out that "[a] reasona- the passengers had enough time to put their oxy- ble Westwind pilot .. . [in these circumstances] gen masks on and remain conscious for the 9 to would be very concerned about potential wake tur- 2 1 12 minute descent to the ocean. I This was am- bulence affecting much smaller aircraft."' 21 9 The ple time for the passengers to suffer anguish from CVR transcript contained several statements by the specter of the, impending crash and physical the pilots indicating that they were aware of their pain from rapid decompression. 212 Thus, this cru- aircraft's proximity to the 757 and that they "real- cial sliver of evidence from the CVR that was deliv- ize [d] they were flying into danger."220 The tran- ered by the ICAO's written report was the script indicated that at least one pilot was "con- lynchpin in this successful pursuit of damages for cerned."2'2 Unfortunately, this pilot's concern did pain and suffering. Access to the CVR tape itself not translate into a response necessary to avert was unnecessary. the crash. 22 2 Nonetheless, the CVR transcript pro- Attorneys who seek access to actual CVR record- vided sufficient information to show that the pi- ings often argue that because the NTSB's initial lots were concerned by circumstances they had findings are not admissible in court,213 the attor- gotten themselves into. neys must assemble their own team of experts, in- cluding CVR speech pathologists, to supplement D. Criminal Investigations and Prosecutions: the small amount of available information. 21 4 A The Current Battleground recent example, however, serves to demonstrate that even the written words of a CVR transcript Congress amended the CVR statute again in can produce rich evidentiary material. 2000.228 The amendment extended the restric- On December 15, 1993, a Westwind business jet tions on public disclosure to "voice and video re- crashed while on approach to John Wayne Airport corder information for all modes of transporta- in Santa Ana, California.2" 5 The small airplane en- tion comparable to the protections already statu- ' 224 countered violent wake turbulence and became torily provided for cockpit voice recorders."

208 Id. 1903(c) at §1154(b), Congress used the identical language of 209 /d. the previous statutes presumably knowing that that language 210 Id. had been long construed to permit the admissibility of the 211 Id. factual portions of Group Chairmen's Factual Reports."). 212 Id. 214 See Thomas A. Demetria & Michael K. Demetrio, 213 See, 49 U.S.C. §1154(b) (1994) (stating that "[n]o Fightingthe Elements, Beyond the Thunder, DealingEffectively with part of a report of the Board, related to an accident or an Adverse Weather and Its Contribution to Air Disaster, 34 AuG investigation of an accident, may be admitted into evidence TRIAL 52, 54 (1998). or used in a civil action for damages resulting from a matter 215 Management Activities, Inc. v. United States, 21 F mentioned in the report"). See also, e.g. Curry v. Chevron, 779 .Supp. 2d 1157, 1160 (C.D.Cal. 1998). F.2d 272, 274 (5th. Cir. 1985); Chiron v. NTSB, 198 F.3d 935, 216 Id. at 1161. 936 (D.D.C. 1999). Notwithstanding the statute's prohibition 217 See generally id. of admission of any part of a report of the Board, courts have 218 Id. at 1171. generally concluded, and Congress has not corrected the no- 219 Id. at 1170 (emphasis added). tion, that it is the Board's opinions and conclusions that are 220 Id. at 1171. inadmissible, not factual parts of reports. See, e.g., Mullan v. 221 Id. at 1172 (quoting from the CVR transcript, with Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir. 1986) nuance interpreted by the team of NTSB experts who pro- (stating that an "expert witness properly relied on the factual duced it) (emphasis added). portions of the NTSB report"); Texasgulf, Inc. v. Colt Elec- 222 Id. at 1171-72. tronics Co., Inc., 615 F.Supp. 648, 651 n.5 (S.D.N.Y. 1984) 223 National Transportation Safety Board Amendments (explaining that the "NTSB factual findings are admissible in Act of 2000, Pub. L. No. 106-424, 114 Stat. 1883 (2000) (here- evidence, but its conclusions, and findings indicating its con- inafter NTSB Amendment Act of 2000]. clusions, are not"); and In re Air Crash at Charlotte, N.C. on 224 Id. at 3 (emphasis added). See also Press Release, Sen- July 2, 1994, 982 F.Supp. 1071, 1077 (D.S.C. 1996) (explain- atorJohn McCain, Senate Approves NTSB Amendments Act ing that "[s]ignificantly, in recodifying §§1441(e) and of 2000 (Oct. 3, 2000). COMMLAW CONSPECTUS [Vol. 11

The amendment also reiterated the confidential- need access to the part of the transcript or the record- ing ity of recordings, created procedures for the for the proceeding. (B) A court may allow a part of a cockpit or surface NTSB to turn over its investigation to the FBI in vehicle recorder transcript not made available to the the event of an intentional criminal act, and it di- public under section 1114(c) or 1114(d) of this title or rected the NTSB and FBI to revise their existing a cockpit or surface vehicle recorder recording to be 2 25 admitted into evidence in ajudicial proceeding, only if agreement accordingly. The amendment is si- the court places the part of the transcript or the record- lent on confidentiality of CVR tapes in the con- ing under seal to prevent the use of the part of the tran- script or the recording for purposes other than for the text of an FBI criminal investigation. However, 2 9 proceeding. the underlying original intent that recorders and their products will be used solely for investigative Gannett Satellite Information Network, Inc. purposes remains, and no government agency ("Gannett"), publisher of USA Today, opposed the 23 1 should be permitted to release more than the government's motion. 1 Gannett argued that the NTSB is permitted to release. public has a First Amendment right of public ac- cess to the trial and that this right includes access Confidentiality of CVR tapes is coming into play to all documents that are submitted during the in the government's case against suspected terror- 23 course of the trial. 1 ist Zacarias Moussaoui.226 Moussaoui was indicted In its reply brief, the ALPA argued that the CVR on December 11, 2001 on six counts of conspiracy 23 2 statute specifically prohibits releasing the tapes. for alleged acts tied to the events of September ALPA also asserted that both the Supreme Court 11, 2001.227 In preparation for its plans to play the and the United States Court of Appeals for the CVR tapes during the trial, the Government Fourth Circuit have upheld withholding sensitive moved for a protective order pursuant to the sec- evidence from the public in the past, including tion 1154 of the NTSB's enabling statute.2 218 This audio tapes from the media. 233- ALPA argued that section provides: in order to maintain confidentiality, access to the (4) (A) When a court allows discovery in a judicial pro- tapes and transcripts presented during the hear- ceeding of a part of a cockpit or surface vehicle re- 2 3, 4 corder transcript not made available to the public ing should be restricted. ALPA cited decisions under section 1114(c) or 1114(d) of this title ora cock- upholding the exclusion of press and public from pit or surface vehicle recorder recording, the court a criminal trial235 in order to demonstrate the shall issue a protective order- lack of a constitutional or common law right of (i) to limit the use of the part of the transcript or the 2 3 6 recording to the judicial proceeding; and access to CVR tapes, and to demonstrate the re- (ii) to prohibit dissemination of the part of the tran- strictions in place to limit the media from gaining 237 script or the recording to any person that does not access to CVR audio tapes played in court.

225 See NTSB Amendment Act of 2000, supra note 223 at Tapes, United States v. Zacarias Moussaoui, Criminal No. 01- §6. 455-A, available at http://notablecases.vaed.uscourts.gov/ 226 Indictment, United States v. Zacarias Moussaoui, 1:01-cr-00455/docs/67744/0.pdf (last visited Oct. 28, 2002). Criminal No. 01-455-A (E.D. Va. filed Dec. 11, 2001), availa- 233 See id. (citing Nixon v. Warner Communications, Inc., ble at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/ 435 U.S. 589, 608-10 (1978) and In re Washington Post Co., docs/64329/0.pdf (last visited Nov. 7, 2002). 807 F.2d 383, 390 (4th Cir. 1986)). 227 Id. 234 Id. at 14. 228 Government's Motion for Protective Order Regard- 235 Id. (citing Bell v.Jarvis, 236 F.3d 149, 166-68 (4th Cir. ing Cockpit Voice Recorders Pursuant to 49 U.S.C. §1154 , 2000) (explaining that the "right of press and public to at- United States v. Zacarias Moussaoui, Criminal No. 01455-A tend a criminal trial is a qualified right; there, the interest in (E.D. Va. 2001), available at http://notablecases.vaed.us safeguarding physical and psychological well-being of minors courts.gov/1:01-cr-00455/docs/67044/0.pdf (last visited prevailed and the public and press were properly ex- Nov. 7, 2002) [hereinafter Government's Motion]. cluded")). 229 49 U.S.C. §1154 (1994). 2_35 Id. at 17 (citing United States v. Calloway, No. 94- 230 Brief of Gannett Satellite Information Network, Inc. 20112 (W.D. Tenn., Aug. 31, 1995) (stating that the "court Opposing the Government's Motion for Protective Order Re- need not decide [the statutory] issue, however, because even garding Cockpit Voice Recorders, United States v. Zacarias assuming that [section] 1154 does not prevent release of the Moussaoui, Criminal No. 01455-A (E.D. Va. 2001), available tape, the court finds the media do not have a constitutional or at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/ common law right of access to the tape") (emphasis added). docs/67147/0.pdf (last visited Oct. 28, 2002). 2317 Id. at 16-17 (citing US Airways, Inc. v. Parker-Han- 231 Id. nifin Corp., C.A. No. 99-CV-917 (W.D. Pa., June 19, 2002)). 232 Brief of Intervenor Air Line Pilots Association, Inter- See also Government's Motion, supra note 228, at 2 (explain- national in Opposition to Gannett Satellite Information Net- ing that "[d]uring the US Airways litigation, the CVR record- work, Inc.'s Request for Access to Cockpit Voice Recorder ing was played in open court as part of an aircraft animation, 20031 "Privileged Communications?"

IV. FUTURE DEVELOPMENTS other voice, presumably belonging to the captain who had then returned from the lavatory, asked In the wake of the events of September 11, the 248 " [W] hat's happening, Gamil? . . . "What is this? FAA has proposed that video cameras be installed What is this? Did you shut the engine(s)?"2 49 The 238 in airplane cabins. By looking at the feeds pro- Egyptian Government has rejected the intentional duced by ' 2 511 the cameras, pilots then could monitor crash theory as "unacceptable speculation." what is happening from behind their barricaded The NTSB concluded that the probable cause of 239 cockpit door. This proposal is only one part of the accident was "the airplane's departure from the FAA's new Enhanced Airplane Security Pro- normal cruise flight, and subsequent impact with 240 gram. Long before September 11, however, the Atlantic Ocean as a result of the relief first of- the NTSB recommended that cockpit video re- ficer's flight control inputs. The reason for the re- 4 1 25 corders be used to supplement CVRs.2 For ex- lief first officer's actions was not determined." ample, in April 2000, the NTSB recommended in- Regardless of the crash's real cause, if a video 2 4 2 stalling cockpit video recorders in planes, recorder had been present in the cockpit, the in- largely in response to the crash of an Egypt Air vestigators may have enjoyed an easier investiga- Boeing 767 into the Atlantic Ocean near Nan- tion process that yielded results having a higher tucket, Massachusetts on October 23, 1999.243 Al- degree of certainty. Accordingly, the NTSB rec- though there is no conclusive evidence available ommended installing video recorders in cock- concerning the Egypt Air crash, the CVR record- pits. 25 2 This proposal is still being reviewed, and it ing has led some to believe that the co-pilot may is likely to gain more attention in the post-Sep- 24 4 have crashed the plane deliberately. First, inves- tember 11th world. If done properly, installation tigators concluded that there were no mechanical of cockpit video recorders could provide a useful when it crashed. 245 problems with the airplane tool for accident investigators. If not done prop- Second, CVR information indicated that the co- erly, cockpit video recorders could provide an ir- pilot was alone in the cockpit and uttered what resistible target for the media 24 6 and for litigators may have been a prayer before the autopilot who may be unable to resist exploiting these pow- was disengaged, and the aircraft plummeted into erful and tragic images. the ocean. 247 During the high speed descent an- and the Court, consistent with [section] 1154(a) (4) (B), Deliberate, PEOPLE'S DAILY ONLINE, at http://english.people placed the CVR audio under seal. The Court granted WTAE- daily.com.cn/200001/21/eng20000l2lWl25.html (Jan. 21, TV access to a videotape of the animation with the CVR re- 2000) [hereinafter Investigators]. dacted."). 244 See id. 238 FAA, FAA ENHANCED AIRPLANE SECURITY PROGRAM, at 245 See id. http://www.airweb.faa.gov/airplanesecurity/announce.htm 246 See NTSB, VEHICLE RECORDERS DIVISION, SPECIALIST'S (last visited Oct. 30, 2002). FACTUAL REPORT OF INVESTIGATION DCAOOMA006 (authored 239 Id. by Albert G. Reitan) at 37, at http://www.ntsb.gov/events/ 240 Id. There are current initiatives by airlines and others EA990/docket/Ex_12A.pdf (Feb. 10, 2000) (last visited Oct. to install video surveillance cameras in aircraft cabins and 30, 2002) [hereinafter NTSB SPECIALIST's FACrUAL REPORT OF outside the aircraft to enable pilots to observe potentially INVESTIGATION, CVR TRANSCRIPT] (citing to a translated CVR threatening activity in the cabin and on the ground. In fact, a transcript, which states that the co-pilot of the Egypt Air panel organized by the ICAO made such recommendations a flight uttered, "I rely on God."). year before the terrorist attacks of September, 2001. See Chris 247 See NTSB, AIRCRAFT ACCIDENT BRIEF: EGYPTAIR FLIGHT Woodyard, Panel Wants Cameras in Plane Cabins, USA TODAY, 990, BOEING 7670366ER, SU-GAP, 60 Miles South of Nan- Sept. 28, 2000, at lB. In the aftermath of the September, tucket, Massachusetts, October 31, 1999, at 4, available at 2001 attacks, some airlines have already begun to install these http://www.ntsb.gov/Publictn/2002/aab0201.htm (released cameras. See Dennis Blank, Surveillance Cameras Set to Keep March 13, 2002) [herinafter NTSB, AIRCRAFT ACCIDENT Watch in Airliners, N.Y. TIMES, Apr. 6, 2002, at C1. BRIEF: EGYPTAIR FLIGHT 990]. 241 See Acting NTSB Chairman Jim Hall, Address at the 248 See NTSB SPECIALIST'S FACTYUAL REPORT OF INVESTIGA- Global Airline Industry Program, Massachusetts Institute of TION, CVR TRANSCRIPT, suprfa note 246, at 37. Technology, at http://www.ntsb.gov/speeches/former/hall/ 249 Id. at 38. jhc001129.htm (Nov. 29, 2000). 250 See BBC NEWS, Egypt Rejects Air Crash Report, at http:// 242 Safety Recommendation Letter from Jim Hall, Chair- news.bbc.co.uk/hi/english/world/middle east/new- man, NTSB to Jane Garvey, Administrator of the FAA (Apr. sid_1287000/1287296.stm (Apr. 20, 2001) (last visited Oct. 11, 2000), at http://www.ntsb.gov/recs/letters/2000/ 30, 2002). A0030_31.pdf (last visited Oct. 30, 2002) (detailing NTSB 251 See NTSB, AIRCRAFT ACCIDENT BRIEF: EGYPTAIR FLIGHT safety recommendations A-00-30 and A-00-31) [hereinafter 990, supra note 247. Safety Recommendations A-00-30 and A-00-31). 252 Safety Recommendations A-00-30 and A-00-31, supra 243 See Investigators: All Signs Indicate Egypt Air Crash Was note 242. COMMLAW CONSPECTUS [Vol. 11

V. CONCLUSION was said, and what happened are readily ascertain- able from transcripts and other publicly available The original intent of placing CVRs aboard data. It is not clear, then, that the narrow window commercial airplanes is clear. They are to be used currently available for discovery of CVR audio is strictly for accident investigations. It is well-docu- of any justifiable use. As the Cali accident demon- mented that CVRs have served the purpose of strated, content of CVR tapes still make their way helping to find the cause of aircraft accidents and, to the public, and the situation will likely worsen thereby, helping to prevent reoccurrences. In ad- if cockpit videotapes become the norm. Without dition, it has been well-documented that CVR stringent restrictions, the public inevitably will tapes have been misused on occasion. These see, as well as hear pilots' dying moments-to the abuses have brought inexcusable grief to victims glee of some, and the horror of others, including and their families. It also has forced Congress to the families of the pilots left behind. To prevent further restrict access to tapes by invoking a what is otherwise inevitable, Congress and the bright line rule of acceptable usage. courts must continue to guard pilots' rights to pri- The content of the cockpit conversations is not vacy and their privileged communications in their "privileged" from communication outside govern- offices, the cockpits of the aircraft they fly. ment accident investigations, but the playing of actual CVR tapes is, and must remain so. What