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News Release

Intervenor Air Line Pilots Association, International ("ALPA"), the union that represents 66,000 air line pilots, submits this brief in opposition to the motion of intervenor Gannett Satellite Information Network, Inc. ("Gannett") opposing the Government’s Motion For Protective Order Regarding Cockpit Voice Recorders.

As we show in Part I below, 49 U.S.C. § 1154 (hereinafter referred to as the "CVR statute") specifically prohibits release of the CVR tapes to Gannett. As the legislative history makes clear, that statute was passed in response to the release of a CVR tape to the broadcast media in 1989, and was drafted specifically "to prevent a repetition of this unfortunate occurrence" by "prohibit[ing] CVR tapes from being released to the public." H.R. Rep. No. 661, 101st Cong., 2d Sess. 4 (1990) (Attachment 1 at 4).

In Part II we show that, contrary to the assertions of Gannett, the CVR statute is entirely consistent with the First Amendment. Indeed, both the Supreme Court and the Court of Appeals for the Fourth Circuit have specifically held that the First Amendment does not prevent courts from withholding from the news media tape recordings that have been used as evidence in judicial proceedings. Further, recent District Court decisions have uniformly refused media requests for access to CVR audiotapes, even when the tapes have been utilized as a trial exhibit.

And, as we show in Part III, the fact that the tapes at issue have been played to other persons or may be played during the trial does not and cannot, as Gannett claims, create a waiver of the CVR statute in this case.

In Part IV we show that, even if the Court were to determine that 49 U.S.C. § 1154 does not apply in this case, Gannett has not shown that release of the tapes would be justified under common law principles. Indeed, Gannett has offered no substantial justification whatsoever for release of the tapes, while in contrast the justifications for withholding them are substantial, including protection of the victims and their families from the trauma associated with reliving these horrible events through repetitive public airing of the CVR tapes on broadcast media.

Finally, in Part V we show that, if the Court nevertheless determines that release of the tapes is proper, it should issue a stay to prevent release until ALPA and others have an opportunity to appeal the Court’s ruling.

In response to almost exactly the same situation presented here -- efforts by the news media to obtain for public broadcast copies of a CVR tape put at issue during a trial -- Congress passed the statute now codified at 49 U.S.C. § 1154. The purpose of that statute, as the House Committee Report bluntly explained, was to "prohibit CVR tapes from being released to the public." H.R. Rep. No. 661 (Attachment 1 at 4). Specifically, Congress sought to prevent a repetition of precisely what Gannett seeks here: a judicial decision to release a CVR tape to the news media. Id. To protect the rights of litigants in cases arising out of aircraft crashes, the CVR statute allows use of CVR tapes and transcripts at trial, where necessary, "only if the court places the part of the transcript or the recording under seal to prevent the use of the part of the transcript or the recording for purposes other than for the proceeding." 49 U.S.C. § 1154(a)(4)(B). See also S. Rep. No. 450, 101st Cong., 2d Sess. 6 (1990), reprinted in 1990 U.S.C.C.A.N. 6376, 6381 (Attachment 2 at 6) (statute intended to "eliminate the use of [CVR materials] except to insure that litigants are able to receive a fair trial"). Accordingly, Gannett’s request for access to the CVR tapes should be unequivocally denied.

To understand this legislation fully, some background on the use of CVR information -- and the limitations on the use of that information -- is important. CVRs have been mandatory equipment on most large commercial aircraft since 1965, and since that time the use of CVR recordings and transcripts has been limited by regulation and statute. To airline crewmembers, CVRs represented a frightening and unprecedented invasion of privacy and intrusion into the workplace, since the existence of a CVR meant that every workplace conversation would be recorded, and every statement and action would be placed into a record to be reviewed and analyzed in excruciating detail. Statement of ALPA President Henry A. Duffy before the Aviation Subcommittee, Senate Committee on Commerce, Science and Transportation, United States Senate (May 10, 1990). (Attachment 3 at 1-2.) However, pilots also recognized, as did the Federal Aviation Administration ("FAA"), that CVRs provided a unique opportunity to advance aviation safety by allowing detailed analyses of the cause of aviation accidents -- assuming, of course, that one could be sure that the pilots were not inhibited in their cockpit communications by the presence of the recorder. (Id.) In response to these concerns, the FAA would require CVRs and agreed that CVRs would be used only for accident investigation and prevention:

Information obtained from the [CVR] record is used to assist in determining the cause of accidents or occurrences in connection with investigations under Part 830 [of the NTSB’s regulations]. The [FAA] Administrator does not use the record in any civil penalty or certificate action.

14 C.F.R. § 121.359(h).

By itself, however, the FAA proved unable to restrict the use of CVR materials to their intended purposes for several reasons. First, the FAA was not the only entity with access to CVRs; the National Transportation Safety Board ("NTSB"), which had independent jurisdiction to investigate aircraft accidents, also regularly came into possession of CVR tapes. Second, in 1966, the year after CVRs were introduced, Congress passed the Freedom of Information Act, which greatly increased disclosure of information in the hands of the federal government. And third, at about that time news media interest in commercial air disasters began to increase. Consequently, pilots and their families became subjected to CVR transcripts in the news media immediately after aircraft accidents, which in turn led to uninformed speculation about the cause of the accidents, and "unwarranted and unfair accusations being made against the flight crew and others involved." (Attachment 3 at 2.) To curb such abuses, in 1982 Congress supplemented the FAA’s existing regulatory limits on CVR use with legislation directed at the NTSB. That legislation provided:

Notwithstanding any other provision of law, the [NTSB] shall withhold from public disclosure cockpit voice recorder recordings and transcriptions, in whole on in part, of oral communications by and between flight crew members and ground stations, that are associated with accidents or incidents investigated by the Board: Provided, That portions of a transcription of such oral communications which the Board deems relevant and pertinent to the accident or incident shall be made available to the public by the Board at the time of the Board’s public hearing, and in no event later than 60 days following the accident or incidents[.]

Pub. L. 97-309 § 2(c), 96 Stat. 1453 (October 14, 1982).

Unfortunately, even this legislation proved insufficient to protect pilots’ privacy interests, and in the few years following that 1982 statute there were three notorious instances where CVR material found its way into media accounts. (Attachment 3 at 2-3.) The third of these incidents, which served as the final impetus for passage of new legislation, occurred when the actual CVR tape from a Delta Airlines jet involved in a fatal crash in Dallas was played on national news programs. (Id.) Again Congress reacted, this time by enacting in 1990 the provisions of the statute now at issue.

First, Congress mandated procedures for the NTSB to follow regarding protection and disclosure of CVR information when the NTSB was investigating an aircraft accident. In a provision now codified at 49 U.S.C. § 1114(c), Congress reiterated that the NTSB could not release CVR recordings, and could only release CVR transcripts at specified points during its investigation.

Second, with the stated goal of "prevent[ing] a repetition" of the incident in which the CVR from the Delta crash was broadcast on national news, Congress imposed precise limitations on the use of CVR information in judicial proceedings. H.R. Rep. No. 661 (Attachment 1 at 4). These limitations, which are now codified in 49 U.S.C. § 1154, were independent of the limitations placed on the NTSB; indeed, since limitations on the NTSB existed under the 1982 statute, the purpose of this portion of the 1990 law was to broaden the protections against release of CVR materials to parties other than the NTSB. As the House Committee Report explains:

Although it was the intent of the existing [1982] law that the recordings themselves would not be made public, the law did not prohibit release of the recordings by persons other than the Board. In 1989, a Texas state court ordered Delta Airlines to release a CVR tape from an accident which had occurred a year earlier. The CVR tape was then broadcast by the media. The reported bill would prevent a repetition of this unfortunate occurrence. It would prohibit CVR tapes from being released to the public.

H.R. Rep. No. 661 (emphasis added) (Attachment 1 at 4). See also S. Rep. No. 450 (Attachment 2 at 6) (The bill would "prohibit[] dissemination of the [CVR] recording or portion to anyone who does not need the information for the [judicial] proceeding. This provision is intended to eliminate the use of such information except to insure that litigants are able to receive a fair trial.").

In enacting the 1990 amendments to the CVR statute, Congress recognized that aircraft crashes traditionally spawn litigation, and that litigants should be allowed necessary access to the CVR materials. Accordingly, the statute carefully balanced the privacy privilege afforded pilots and families against the rights of litigants to receive a full and fair trial.

The privilege afforded the CVR is based upon the recognized principle that because voice information on the CVR may prevent or explain crashes, pilots agreed to what would otherwise be overly intrusive, continuous monitoring, knowing that the contents of the tape will likely become of interest to others only in the cases when it records their deaths. ALPA is frequently put in the position of intervening in judicial proceedings to enforce the privacy interests protected by the CVR privilege because, as a practical matter, were ALPA not to do so, there is no other party with a consistent and strong enough interest to ensure that the appropriate judicial protections are put and kept in place.

The result of Congress’ recognition of the privilege is an intricate method for determining whether and in what circumstances a CVR transcript or the tape itself can be used in a judicial proceeding. In many instances, the portion of the CVR transcript relevant to an accident is made public by the NTSB pursuant to its authority under 49 U.S.C. § 1154(c), and the statute presumes that that portion can be used by the litigants for any proper purposes. Additional parts of the CVR transcript, or the tape itself, may also be made available to litigants, but only if the court determines that one or both is necessary for a fair trial, and only if their use is limited to the proceeding. The statute provides no room, however, for release of CVR materials to the press; in fact, as the authors clearly stated, the statute is specifically designed to prohibit just such release. H.R. Rep. No. 661 (Attachment 1 at 3).

Thus, in enacting the 1990 legislation, Congress addressed two distinct issues: NTSB handling of CVR materials (now codified in 49 U.S.C. § 1114(c)), and judicial handling of CVR materials (now codified in 49 U.S.C. § 1154). As the legislative history makes clear, Congress enacted this legislation to prevent precisely what is sought here -- release of a CVR tape to the news media.

In 2000, Congress again amended 49 U.S.C. § 1154 by extending the privacy protection afforded under the statute to other modes of transportation and clarified that it was the information contained on these recordings that was protected, no longer just pilot voices. The Senate Report stated that Section 5 of the Act (amending § 1154):

[R]equires the withholding from public disclosure of voice and video recorder information for all modes of transportation comparable to the protections already statutorily provided for cockpit voice recorders (CVRs). . . .

S. Rep. No. 386, 106th Cong., 2d Sess. 8 (2000) (emphasis added) (Attachment 5 at 8-9). Meanwhile, Section 6 "create[d] procedures for [the] NTSB to turn over its investigation to the FBI when it appears that the accident was caused by an intentional criminal act . . . " (Id. at 8). Therefore, Congress clarified that the CVR’s statutory privilege would now cover "voice recorder information" and in the very next section required procedures to include the FBI as well as the NTSB in crash investigations. The Congress plainly anticipated that the CVR tapes would come into the hands of Government investigators and prosecutors, and anticipated that the privilege under 49 U.S.C. § 1154 would extend to criminal "proceedings" involving the FBI.

Gannett suggests in its brief, at 6, n.4 that ALPA’s privacy concerns might be addressed by making only those portions of the tapes upon which the voices of crewmembers appear subject to a protective order. The CVR statute, however, makes no provision for the Court to select portions of a CVR tape for disclosure. Rather, Congress’ plain express intent was "to prohibit CVR tapes from being released to the public." H.R. Rep. No. 661, supra.

Gannett suggests that the CVR statute is contrary to the First (and Sixth) Amendments, and therefore not enforceable. (Brief at 2-3.) That argument is wholly without merit. Both the Supreme Court and the Fourth Circuit have specifically rejected claims that the First Amendment requires disclosure of tapes or other documents that have been admitted into evidence in a judicial proceeding.

In Nixon v. Warner Communications, Inc., 435 U.S. 589, 608-10 (1978), the news media argued that the First Amendment required the district court to disclose the Watergate tapes after they had been admitted into evidence during the trial of Nixon’s advisors. The Supreme Court specifically rejected that claim, holding that the First Amendment merely preserves the right of the news media and the public to have access to information contained in court records. Id. at 608-10. In that case, there was no issue of a statutory privilege as there is here. The tapes had been played and transcripts made available. Because "there [was] no question of a truncated flow of information to the public," there was no infringement of First Amendment rights. Id. at 609. Therefore, it is established law that the First Amendment does not require access be granted to the CVR audiotapes themselves. Subsequent cases clarified that even the public and press right of access to criminal trials is not unqualified.

In re Washington Post Co., 807 F.2d 383, 390 (4^th Cir. 1986), that Court noted that "[t]he mere existence of a First Amendment right of access to a particular kind of hearing or document does not entitle the press and public to access in every case." The Court denied the press and the public access to sensitive government documents which were protected under the Classified Procedures Act. In doing so, the Fourth Circuit stated: "[a]ccess may be denied ‘if closure is essential to preserve higher values and is narrowly tailored to serve that interest.’" Id., citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984) and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982).

Similarly, Congress has dictated that such a higher value applies to the information contained in post-accident CVR tapes and transcripts -- and has protected those materials with a statutory privilege. The CVR statute serves a compelling public interest in making critical investigatory and safety information available to investigators, and in appropriate cases litigants, while protecting sensitive privacy rights of crash victims and their families. Were the Court to order these sensitive materials disclosed, it is likely that substantial harm will result to the public’s interest because air crewmembers will no longer have faith that these communications will be protected and air crash investigations in the future will likely suffer due to the unavailability of these and more advanced recordings. Congress continues to be concerned about this issue, as evidenced by the recent expansion of the CVR’s statutory privilege. (See Attachment 5.)

Applying the test of Washington Post, 807 F.2d at 390, here, there are no better alternatives to protect the privacy interests at stake other than closure of media access to the CVR recordings and transcripts. The statute requires it. The First Amendment allows it. Congress carefully weighed the necessity of investigators’ and litigants’ rights of access to the materials against the privacy rights of air crewmembers in passing the CVR statute. There is a compelling public interest in preserving the integrity of the aviation investigative process. There is also a substantial probability that the abilities of investigators of aviation disasters in the future will be irreparably harmed if the confidentiality of these materials cannot be guaranteed. Clearly, Gannett has not obtained the CVR tapes from the Government or the airlines; those parties have correctly acted to protect the tapes and the privacy and public interests involved. Gannett should not be permitted to circumvent the CVR’s statutory privilege by obtaining through this proceeding the very recordings it has been prevented from obtaining directly. There is no reasonable alternative available to the Court to keeping the CVR tapes and transcripts confidential. The sole remaining question is whether the hearing should be closed to the press and public for the purpose of playing the tapes during trial.

The Courts have made clear that First Amendment rights of the press and public are properly subject to closure of judicial proceedings so long as the closure is narrowly tailored to serve the protected interest. See Waller v. Georgia, 467 U.S. 39, 48 (1984) (closure to cover only those parts of hearing that jeopardize interest advanced; there, the government’s interest in protecting confidential criminal wiretap tapes); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980) (noting that the First Amendment permits reasonable closure of criminal proceedings under some circumstances); Bell v. Jarvis, 236 F.2d 149, 165 (4^th Cir. 2000) (right of press and public to attend a criminal trial is a qualified right; there, the interest in safeguarding physical and psychological well-being of minors prevailed and the public and press were properly excluded); Washington Post, 807 F.2d at 393 n.9 (First Amendment closure test also applies to a request to seal documents).

ALPA believes the legislative history of the CVR statute indicates that Congress balanced the interest involved and correctly determined that the CVR recordings be made available only for "purposes of a proceeding." Congress correctly determined that exposure should be limited to necessary parties to a judicial proceeding, i.e., the judge, and (subject to an applicable protective order) the parties, jury and necessary court personnel. Under Jarvis’ First Amendment test, the actual airing of the CVR tapes in this proceeding before the jury should be closed to the public because the interest to be protected is sensitive enough to warrant closure. Notwithstanding, should the Court determine to open the courtroom to the press and public for the playing of the CVRs, it is plain the statute requires that no recordings be made and that the tapes themselves and any transcripts shall remain under seal.

Finally, despite Gannett’s reference to the "First Amendment right of access . . . to documents submitted in the course of a trial" (Brief at 3), the cases it cites for the proposition that the news media should be allowed access to (i.e., copy) tapes played during trial are not based upon the First Amendment. Instead, those cases rely upon a common law right of access to judicial records; indeed, several of the opinions cited specifically state that there is no First Amendment right to have access to tapes played at trial. (See Brief at 3-4.) Common law rights are irrelevant, of course, where Congress has enacted a statute governing the issue. See Nixon, 435 U.S. at 603-8 and n.18.

Gannett also argues, at pages 5-6 of its Brief, that because the CVR tapes from Flight 93 was played to certain family members of the passengers and crew, any right to confidentiality is gone, and the "statute’s mandate . . . does not apply." This is patently in error on a number of grounds.

First, Gannett cites no authority for the proposition that the CVR statute may be disregarded if not followed perfectly in each instance. That is because no such authority exists. Second, there is ample authority for the proposition that limited exposure, even to members of the public, of sensitive materials does not equate to an automatic ruling that public disclosure of the materials themselves is required. E.g., Nixon, 435 U.S. at 608-10. Third, any disclosure by the government to the relatives of passengers and crew killed on Flight 93 was arguably a disclosure to potential trial witnesses, and the playing of the tape to these individuals to assist in the Government’s investigation and/or preparation of its case is arguably a permissible use of the CVR for a "proceeding," permitted by statute. Moreover, Gannett’s argument directly contradicts the holdings of recent District Court cases in which the Courts correctly withheld from the media CVR tapes played at trial. US Airways, Inc. v. Parker-Hannifan Corp., C.A. No. 99-CV-917 (W.D. Pa., June 19, 2002) (Order granting Motion for Access to Judicial Record; access to CVR audiotape denied, attached as Exhibit "A" to Government’s Motion for Protective Order (Docket No. 399)); United States v. Calloway, No. 94-20112 (W.D. Tenn., August 31, 1995) (Order Denying Access to [CVR] Audiotape Recording)(Attachment 6). Even so, the fact that the CVR tapes may or may not have been handled in precise accordance with the statute does not give anyone license to ignore the CVR statute in the future; indeed, if anything, it makes future compliance with the statute even more critical.

Even if the Court were to rule (erroneously, we believe) that 49 U.S.C. § 1154 does not apply in this case, Gannett’s motion for access to the tapes should be denied under common law standards.

In Nixon, 435 U.S. at 597-99, the Supreme Court recognized a common law right to inspect records of judicial proceedings. That right, however, is not absolute, and the decision to allow access is left to the discretion of the District Court, based on the relevant facts and circumstances. Id. at 599.

In this case, nearly every relevant fact weighs against release of the tapes. First, Gannett offers no substantive reason why it should have the tapes, and on that basis alone its request should be denied. Instead, Gannett offers only vague but apparently intentionally tantalizing statements attributed to several relatives of persons who died aboard Flight 93, and a statement of its intention to publish coverage of the trial. Gannett’s remaining silence on the issue otherwise is hardly surprising, however, since it almost certainly seeks the tapes for the basest of commercial purposes: to exploit the sounds of Flight 93 for commercial gain. Gannett cannot reasonably now claim that it needs the tapes to allow full reporting of relevant facts, because the relevance of the tapes has not been determined, nor have the tapes been admitted into evidence. Moreover, if the tapes are ultimately admitted into evidence, the Court’s protective order may be narrowly drawn to allow the tapes to be used in the proceeding without permitting actual copying for commercial distribution. Cf. Nixon, 435 U.S. at 599 n.11 ("substantial access" one factor to be weighed by the district court).

In contrast, release of the tapes themselves would cause significant, tangible harm to the victims of Flight 93 and their families, and to pilots and the flying public generally. Gannett may argue that the victims and their families could simply turn off the television or radio to avoid this exposure, but that would hardly be a practical solution; indeed, unless the families were to remove themselves from modern society altogether by avoiding all forms of broadcast media, there is no way to insure that they would be protected from such exposure.

Finally, the precedent set by release of the CVR tapes to the news media by this Court will have significant adverse consequences on air safety. As we discussed in Part I above, the installation and proper utilization of CVRs has been dependent upon acceptance of this intrusive device in the workplace. Pilot acceptance, in turn, has rested upon assurances that CVR materials would be used for accident investigation and not for the exploitive purposes of commercial media. Based on the success of the CVR, new generations of safety equipment are being designed and installed, such as cockpit and cabin video recorders, that promise to provide even more information for air safety specialists.

While new these devices offer great benefits, pilots will immediately recognize that cockpit and cabin video are even more intrusive than the CVR and offer even greater possibilities for misuse. Accordingly, without solid assurances that cockpit recordings will not be released in the future, it is unlikely that the new devices will gain the support necessary to make them effective. More to the point, the release of these CVR tapes will make it difficult, if not impossible, to give pilots any realistic assurance that the Courts will follow Congress’ intent and that cockpit recordings will not be released to the media in the future. Implementation of the new technologies, if it occurs at all, could be significantly delayed. In sum, the circumstances here weigh heavily against release of the tape.

If the Court were to order disclosure of the CVR tapes, ALPA would immediately appeal that decision. Since enforcement of the order would undermine the appeal and cause irreparable injury to the victims, their families, and to other ALPA members operating under what they perceive to be the protections of the CVR statute, ALPA has filed, with this brief, a motion in the alternative requesting that the Court stay the effectiveness of any such order pending an appeal.

Under Fed. R. Civ. P. 62(c), the Court weighs four factors in considering whether to stay an order pending appeal: (1) the likelihood that the applicant will be irreparably injured absent a stay; (2) the likelihood that the applicant will succeed on appeal; (3) the prospect that other interested parties will be harmed if the stay is granted; and (4) the public interest in granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4^th Cir. 1970)(Memorandum Opinion and Order), aff’d, 436 F.2d 1116 (1971). Accord Hilton v. Braunskill, 481 U.S. 770, 776-77 (1987). The necessary level and degree of each factor will vary according to the court’s assessment of the other factors. Id. at 777. Thus, the greater the irreparable injury, the lesser the likelihood of success that needs to be demonstrated. Id. at 777-78.

First, as we have demonstrated in Part IV above, there can be no question that the victims and their families and the trust pilots place in Congress’ ability to prevent disclosure of the CVR tapes will be irreparably harmed if the stay is not granted. Indeed, stays routinely have been granted in other cases where the harm suffered was far less tangible than the harm that would occur here. See e.g., Basicomputer Corp. v. Scott, 973 F.2d 507, 512 (6^th Cir. 1992) (loss of customer goodwill amounts to irreparable injury because damages flowing from such losses are difficult to compute); Fund for Animals, Inc. v. Espy, 814 F. Supp. 142, 151 (D.D.C. 1993) (plaintiffs who enjoyed viewing wild bison would suffer irreparable injury if research study involving capture of wild bison near plaintiffs’ property were implemented).

Second, we have demonstrated a significant likelihood of success on appeal. Indeed, even if the Court disagrees with our view of the merits, there can be no doubt that a serious legal question has been presented which should be preserved for appellate review. See Goldstein v. Miller, 488 F. Supp. 156, 172 (D.Md. 1980) (difficult legal question, stay granted), aff’d sub nom., 649 F.2d 864 (4^th Cir. 1981).

Third, there would be no appreciable harm to Gannett as a consequence of a stay. The information contained in the tapes has already been provided to those family members who wished to hear the recordings. Gannett has had the opportunity to interview those persons and report their impressions. The only thing that would be delayed, of course, would be a public broadcast of the actual screams and cries of the victims, and the sounds of violence and disaster. Plainly the public could wait until the completion of an appeal to hear those sounds.

Finally, as we discussed in Part IV above, the public interest in insuring the advancement of air safety lies in granting the stay and allowing considered appellate review.

For the foregoing reasons, intervenor Air Line Pilots Association urges the Court to grant the motion of the United States for a protective order sealing the CVR tapes and transcripts of the cockpit voice recorder aboard United Airlines Flight 93 and ExecuJet Flight 593 on September 11, 2001 in accordance with 49 U.S.C. § 1154; and grant the Motion of ALPA to close the courtroom to the press and public during any actual playing of the CVR tapes.