Cockpit Video Recorders: Lawyers, Cameras, & Money

Air Line Pilot, June/July 2000, page 24
By Jan W. Steenblik, Technical Editor

The chairman of the NTSB and plaintiffs’ attorneys want cockpit video recorders in airline cockpits; ALPA says no.

Michel Baumeister is a plaintiffs’ attorney. He sues airlines, manufacturers, and other parties for his clients, who are victims and relatives of victims of aviation accidents.

"The tort system," he said with considerable intensity at a recent NTSB symposium on transportation safety and the law, "is about accountability. It’s not, as many in the tort reform movement will tell you, all about greedy plaintiffs’ attorneys. It’s about exposing factual data to the light of day."

[Um, O.K.—we’ll take your word for it, counselor.]

Baumeister said he’s been strongly in favor of cockpit video recorders, and noted that ALPA "understandably" has been strongly opposed to them.

"I would be in favor of criminal sanctions against plaintiffs’ attorneys [and others] for releasing cockpit videotapes," Baumeister asserted.

But the need for such video recording devices, he argued, is unassailable.

"On TWA 800, we heard a click—did [the flight crew] turn the scavenge pump on, or not?

"EgyptAir [Flight 990]: Was that a suicide, or not? It would have been nice to have a cockpit video recording."

Baumeister insisted, "A lot of my friends are flying in the front seats," and that he wouldn’t want a cockpit video recording to be aired on television and thus cause anguish to the pilots’ families after an accident. "But I think you can do both [i.e., record videotape of a cockpit, and protect it from public disclosure]," he concluded.

All of which sounds, at least at first blush, very reasonable. But regarding Aviation Safety Action Programs (ASAPs), Flight Operations Quality Assurance (FOQA), and other aviation self-disclosure programs, Baumeister seemed to imply that the events that these confidential safety reporting programs record involve deliberate negligence. To knowledgeable observers in the audience, Baumeister appeared to either grossly misunderstand or intentionally misrepresent these important safety programs.

Of course, they might have been misinterpreting his actions and what he intended to communicate—though he was right there in the same room, live. The Safety Board was videotaping his participation in a panel discussion, but the videotape would not be used later to determine his culpability, nor to sell prime-time television advertising on the strength of its shocking content.

NTSB symposium

NTSB chairman Jim Hall opened the 2-day symposium on "proprietary information, employee privacy, criminal inquiries, and their impact on transportation safety," held April 25–26 in Arlington, Va.

"I hope we all come away with a better understanding of the complexity that surrounds a single, simple point—the more information we have, the safer we can all be," Hall said.

"About a year ago, the Safety Board held a symposium…to explore the varied uses of recorded data to increase both safety and economic efficiency," he explained. "The participants generally agreed that the intelligent use of recorded data can improve equipment reliability and help a company’s bottom line, and that more importantly, it can greatly enhance operational safety.

"But there was also a profound sense of anxiety about who—outside a company—might use that company’s recorded data and for what purposes. As a result of those concerns, I proposed this second symposium to provide an opportunity for all interested parties to speak directly to the legal ramifications of data collection."

Hall acknowledged that "the use of technology, by enforcing certain behaviors, does require us to sacrifice some freedom of movement, choice, and anonymity for the public good." He argued, however, that "workable compromises and good policy decisions can allay the public’s fears about perceived invasions of privacy."

The NTSB’s original goal for the symposium, Hall added, was to be a forum "to examine ways to facilitate the development of new data recording systems while also minimizing fears that the data would be used inappropriately. It quickly became evident that these issues affect not only recorders, but also any new initiatives meant to improve our understanding about how well other systems operate as well."

Hall said the Aviation Safety Reporting System (ASRS) "has been a wonderful tool [but] is random and unfocused, and its very success points to the need for more aggressive use of non-punitive reporting programs."

The Aviation Safety Action Program (ASAP), Hall continued, "would, in the President’s words, fix problems, not blame. But widespread adoption of the program is slow in coming. And, again, it appears that legal issues are at the heart of the regulators’ and the transport companies’ reluctance to proceed."

Hall also noted that the SabreTech prosecutions that resulted from the ValuJet Flight 592 crash in the Everglades caused the Safety Board to alter the focus of the symposium somewhat. "We had been mostly concerned about impediments to the development of new information, new types of data, new programs, and new technology.

"Those [SabreTech] prosecutions caused us to take a hard look at the possibility that old types of information might also be lost to the accident investigator. For decades, we had relied on individuals to tell us what happened in an accident—and they usually, sometimes reluctantly, did so."

After the SabreTech prosecutions, Hall continued, "we feared that what had been reluctance to cooperate would now become refusal. A pipeline accident in Bellingham, Washington, proved us right. A criminal investigation was immediately launched into the accident, and we have yet to talk to most of the individuals who were operating the pipeline when it ruptured [in] June [1999]. As a result, serious safety issues and serious questions about prevention remain unanswered."

In mid-April, the NTSB had sent formal recommendations to the FAA urging the agency to require cockpit video recording devices in new air transport aircraft and retrofitting them in air transports already flying.

"We know these recommendations are controversial," Hall said. While acknowledging that the rights of the individual to privacy are important, however, Hall framed one of the major issues of the symposium in the question, "Should the individual’s right to privacy be the final determinant when we’re talking about matters of public safety?"

Cockpit video recorders

For Capt. Bruce Brandon (US Airways), a B-737 line pilot and an adjunct professor of law at Wake Forest University in Winston-Salem, N.C., the individual’s fundamental right to privacy is a big deal indeed.

Moderating a panel on recorders, records, and employee rights, Capt. Brandon delivered a passionate explication of the current erosion of privacy of all U.S. citizens—and the even greater lack of privacy among transportation workers.

"We’re here today to discuss whether the privacy of U.S. transportation workers should be further eroded in the name of safety—not whether we can, because we know that, technically, we can, but should we?"

Capt. Brandon quoted former Supreme Court Justice William Brandeis, who said, "The most fundamental right is the right to be left alone."

Capt. Brandon pointed out that federal aviation regulations require pilots to stay in their seats except to "meet physiological needs." Thus, the pilots could be forced to spend many hours at time in front of a cockpit video recorder.

"No one has studied to see what effect that would have on the pilots," he warned.

Reaching consensus on what constitutes a "reasonable" expectation of privacy," said Capt. Brandon, is difficult—like deciding what is art and what is pornography.

Capt. Lindsay Fenwick (Northwest), a member of ALPA’s Accident Investigation Board, presented the Association’s views on cockpit video recorders ("Privacy Versus Safety," below).

Byron Boyd of the United Transportation Union said the UTU, which primarily represents railroad engineers but is also the bargaining agent for some regional airline pilots, agrees with ALPA’s position on employee privacy issues.

Capt. Scott Griffith, the managing director for operations safety for American Airlines and principal architect of the ASAP program there, told the symposium attendees, "I think what you’re hearing from the participants of this panel is that we need to establish standards of appropriate use" for all types of data collected in aviation. "If you are not able to ensure appropriate use of relevant information," Capt. Griffith warned, "you will not be successful in gathering it."

Capt. Fenwick fielded the first question from the audience after his fellow panelists had made their presentations: "If bank tellers and 7–Eleven clerks are subjected to video recording, why shouldn’t pilots be videotaped?"

The video cameras in banks and convenience stores, Capt. Fenwick replied, are installed primarily to detect and record criminal activity such as robberies. Also, he said, those establishments don’t have multiple types of data recorders to document those events, the way transport airplanes have CVRs and FDRs.

A good portion of the 2-day symposium focused on

* how various confidential, non-punitive data-gathering programs work, the safety benefits gained from them, and the fundamental importance of participants being able to trust the promises of confidentiality and other protections;

* immunity for transportation workers in civil and criminal enforcement cases;

* criminalization of accidents; and

* the controversial role of enforcement in achieving safety goals.

Sidebar I

ALPA Position on Videotape Recorders in the Cockpit

ALPA opposes the installation of cockpit video recorders until protective provisions are in place to prevent the misuse of information obtained from cockpit video recorders.

Such protective provisions must include legislation to prevent the release of information obtained from cockpit video recorders to anyone outside the accident investigation and must include contractual and regulatory requirements to ensure that information obtained from cockpit video recorders cannot be used as a basis for punitive action against a flight crew member by the airline or government agency.

Since flight crew activity such as flight control manipulation, engine thrust setting, and the audible environment of the cockpit are already recorded by other flight recorders, cockpit video recorders must be installed in such a way as to ensure that they focus on and record only the cockpit instrument panel and not record flight crew activity (ALPA Administrative Manual, Section 80, Paragraph N).

Source: ALPA Board of Directors, 1982; Amended, Executive Board, May 1995

The final session, however, revisited the debate over cockpit video recorders. The Honorable Todd Campbell, U.S. District Court Judge from Nashville, Tenn., and a long-time associate of NTSB Chairman Hall, moderated the panel whose title was named, with excessive optimism, "Solutions for Safety: Information and Risk Management."

One of the three issues with which the panelists grappled was this group of questions: "Are CVR ‘protections’ enough, or should they be expanded? Enough for all modes [of transportation]? [What might be the role of] new technologies?"

Plaintiffs’ attorney Michael Demetrio declared, "I honestly don’t see a downside to having this [video] technology." Demetrio said he is litigating a case involving an accident at a high-speed rail crossing. A video camera installed at the crossing recorded the entire event, Demetrio explained, and makes his suit an open-and-shut case.

Bob Clifford, another plaintiffs’ attorney, said he certainly believes that video has its place as evidence in the courtroom—and that he endorses protections to uphold individuals’ rights to privacy. On the other hand, he said his clients in aviation cases feel "left out of the loop because they’re denied access to the CVR."

Clifford added that he is litigating a case in which a baby died during delivery in a hospital.

"The hospital and the doctor are pointing fingers at each other," he explained. "Guess what? There’s a videotape of the whole procedure, and it’s Exhibit A! I don’t even have to argue the case—I can sit down and just show the jury the video!"

Capt. Brandon pointed out that an Airbus Industrie A330 is wired to record 2,500 parameters. "What," he asked, "is a cockpit video recorder going to add to that? The video recorder won’t prevent an accident."

"But it’ll prevent accident number two," Clifford shot back.

"Why not spend the resources to prevent the first accident?" Capt. Brandon responded.

Demetrio argued that, on older Boeing 737s, the FDR doesn’t collect enough data points. In the investigation of the September 1994 accident involving USAir Flight 427 near Pittsburgh, Pa., he said, a cockpit video recording might have quickly resolved the issue of whether pilot error was involved. (The same could be said for a newer FDR recording more parameters and/or offering a faster sampling rate.)

Ken Smart, chief inspector of air accidents, United Kingdom’s Department of Transport, noted that, last fall in Montreal, he chaired the meeting of the International Civil Aviation Organization that discussed updates to onboard voice and data recorders. ICAO is developing specifications for cockpit video recorders and will conduct a big study on this subject, he said.

Ron Schleede, who is now on detail to the Transportation Safety Board of Canada from the NTSB, added, "The impetus to move the study forward will only come from the [member] States. It’s a slow process."

Capt. Ed Soliday, vice-president for flight safety, United Airlines, argued, "the proper forum to debate cockpit video recorder issues is the scientific community, not here."

Which brings to mind the comment earlier in the symposium by Marty Matheson, general manager of the American Petroleum Institute: "It troubles me that we’re talking about safety here, and 50 to 70 percent of this audience are attorneys."

The symposium put some of the issues on the table, but resolved nothing. Suffice it to say, however, that NTSB Chairman Hall, who ostensibly wants cockpit video recorders to find facts and save money (the rash of recent offshore wreckage recoveries has been very expensive), has enormous support from plaintiffs’ attorneys on this issue. They love videotape, and whoever suspects they might be giving only lip service to the notion of protecting individual rights and preventing abuse of this most intrusive of recording devices should stay tuned. Film at 11?

Sidebar II:

Privacy Versus Safety: A Pilot’s View

Following is a slightly condensed version of the presentation that Capt. Lindsay Fenwick (Northwest) made at the NTSB’s symposium, "Transportation Safety and the Law: Proprietary Information, Employee Privacy, Criminal Inquiries, and Their Impact on Transportation Safety," held April 25–26 in Arlington, Va.

All pilots have a vested interest in enhanced equipment or improved procedures that will make their work environment safer. But our enthusiasm for such changes is sometimes less than overwhelming.

We tend to be a pragmatic and skeptical bunch, and we have learned to be leery when someone says, "Take this—it’ll be good for you." Many pilots have strong opinions about things that fail their reasonableness test, and this includes recording devices that infringe on what they consider to be their workplace right to privacy.

Enhanced recording technology will help us identify airplane and airspace system deficiencies. It can also identify procedural and human performance shortcomings, although how we can best handle such revelations is still—at least in this country—a work in progress.

More-sophisticated digital flight data recorders (DFDRs), perhaps with real-time data downlink capability—especially for aircraft in distress—would seem to be a logical development.

The same goes for improved microphones that are better able to capture cockpit and cabin sounds, as well as a new generation of video recorders designed specifically to capture information that would otherwise be unavailable. The DFDRs in the latest generation of transport aircraft are recording several hundred parameters.

Most accidents are not the result of mysterious causes. Sadly, we keep repeating many of the same old accidents. Even with existing technology and older recorders, relatively few major accidents have occurred for which probable causes have not been determined. Advanced DFDRs will make this even more of a rarity.

Individual rights vs. public safety

Because airline pilots are in high-profile, safety-sensitive positions, we realize that our individual rights or preferences are going to be continually balanced against the interests of the traveling public. Thus we have accepted —albeit sometimes grudgingly—procedures such as random drug and alcohol tests, security screening, random line checks, and so on.

We have learned through experience that we don’t have a statutory right to privacy in our workplace, the cockpit. Pilots do accept accountability for their words and deeds, but balk when they are subject to what they perceive as unfair practices. Many pilot groups have felt the need to negotiate a measure of reasonableness or fairness with regard to data recordings, and thereby obtain contractual protections intended to prevent the misuse of recorded information by their employer.

A pilot will evaluate what is reasonable based in part on his or her experience in daily line flying. And here’s where a measure of cynicism creeps in. Why does the airline industry appear to be focused more on deriving information from a cockpit after an accident than with providing the cockpit with information or technology that might have prevented that accident from occurring in the first place?

Cockpit video recorders

The cockpit view video recorder is currently riding a wave of popularity among regulators and investigators. Why such interest? Perhaps because even the layperson can easily identify with this technology. Coupling this familiarity with the belief that all you need is a power supply and a place to hang the camera makes it seem like a pretty slick solution.

But before we move with undue haste, our experience with CVRs should be instructive. The CVR was introduced almost 40 years ago solely as a tool to help accident investigators. Although airline pilots accepted it reluctantly at the time, the CVR continues to serve its purpose admirably. But, along the way, we have learned a number of lessons.

The news media can—and have—used CVR tapes for sensationalist purposes. CVR tapes have been used in litigation, in both civil and criminal cases, and employers have even used CVRs for surveillance and for disciplining pilots.

In the United States and Canada, government authorities now respect the sanctity of this privileged information, and we expect that they will be equally as disciplined when it comes to protecting the information that could be provided by cockpit video recorders. But other countries have their own laws and values, and often a different cultural perspective as to what is acceptable.

A major U.S. television network’s playing the Cali crash CVR tape was an outrage to many pilots in this country, but the release of the CVR tape did not violate Colombian law. This was a prime example of the current inadequacies of the protection of CVR information.

If cockpit video recorders are installed in a manner that many have proposed, the world will soon share firsthand the cockpit environment in the seconds before an airplane crashed. Will this information in the public domain enhance safety? Hardly. Would such a development be acceptable to the world’s airline pilots? Absolutely not.

Limited field of view

We must try to create the best possible protective language for both cockpit voice recorder and video recorder information. However, because protecting this information on a global basis is essentially impossible, ALPA believes that the most reasonable solution is probably to limit the field of view of video recording devices.

We should be able to give accident investigators just about everything they need by focusing the cameras on cockpit instruments, displays, and annunciators. Most flight control inputs and control surface positions are already recorded on aircraft with newer DFDRs.

However, the airline pilot community is going to meet with a great deal of resistance a recording that displays the pilots at the moment of death or serious injury. An off-the-shelf video camera mounted on the cockpit bulkhead is therefore not going to do the trick. Doing this right will be more of a challenge and certainly more expensive, but any shortcuts will surely be false economy.

Encryption technology

Perhaps encryption technology could be applied to cockpit video and voice recordings. This could ensure that appropriate users, such as the NTSB, get the information they need for accident investigation, while protecting this sensitive material from unauthorized users. Once the accident investigation has been completed, the Safety Board could keep the recording secure or, preferably, destroy it. No provision or opportunity would allow release of the video recording outside the accident investigation. Existing laws apparently cover the use of CVR and video recordings in tort litigation.

Alternative video uses

What other recorded information might be useful in analyzing or preventing accidents?

How about a view out the cockpit window? This would certainly be beneficial in analyzing hazardous weather encounters or runway incursions.

What about cameras that show the pilots the engines and landing gear? Such a view could help pilots decide which emergency procedures to follow —whether to order an emergency evacuation, for example. And should we record the weather radar display and control settings?

Many inflight fires start in the galley and lavatory areas. Smoke detectors are a good start; placing cameras in the lavatories could be useful, but I’m not sure any of us are quite ready for that invasion of privacy, so that application would probably fail our reasonableness test.

Hijackings and other forms of violent behavior that threaten flight safety invariably start in the cabin, and injuries from turbulence encounters are nearly always confined to the cabin. We have always wanted a better understanding of the dynamics of emergency cockpit evacuations. We now have the technology for continuous cabin surveillance. Are our customers ready for this possible safety enhancement, or does this, too, fail the reasonableness test? Is anyone advocating video cameras in the cabs of air traffic control towers or radar facilities? In a few accident investigations, that information would have been useful.

What about video cameras in the offices and homes of the engineers, so we can analyze the outside influences that affected their decision-making during the development of a faulty design? Technically feasible, but probably unreasonable, especially if you happen to be a design engineer.

The point I am trying to make is that other tools may be both reasonable and more cost-effective as we try to achieve the accident rate reductions that were promised to our constituents and customers. Advanced recording technology can help us, but must be applied intelligently and with no small measure of consideration for its effect on those who have the most to gain and the most to lose.

Above all, we must never forget that an accident prevented is infinitely better than an accident recorded, no matter how well it has been recorded.