united-states privacy freedom-of-speech first-amendment air-travel
Does Elon Musk have any grounds for legal action against people who track his plane?
<p>Most airplanes, including Elon Musk's private jet, are required by law to broadcast their location throughout a flight in a well-documented, unencrypted digital format called ADS-B. This system is a critical part of aviation safety infrastructure. Several services, such as FlightAware, FlightRadar24, and ADS-B Exchange, collect this information with ground-based radio receivers and publish it on the Internet. FlightAware and FlightRadar24 will hide aircraft on request from the owner, but ADS-B Exchange does not, and provides unfiltered data.</p>
<p>Elon Musk has threatened to take legal action against people who share tracking data from his jet online, referring to it as &quot;doxxing&quot; and claiming it's a threat to his safety. He also bans Twitter users who post any plane-tracking information.</p>
<p>I don't see how he could have any claim for legal action against people who track his jet. As I have mentioned, ADS-B data is by no means private. When you are on an airplane, there is no reasonable expectation of privacy for your location. Collecting public information about a controversial public figure seems like a very clear case for First Amendment protection. This wouldn't affect his ability to ban Twitter users; he can (within reason) ban anyone for anything on Twitter because he owns it. (It's quite odd that he claims to be a free-speech absolutist but censors the reposting of public information, but that's beside the point.) It would, however, seem to preclude any involvement of the government.</p>
<p>What possible <em>legal</em> action could Elon Musk take against people who post ADS-B data from his private jet?</p>

<p>Specifically, the threatened action is about stalking and implicit threats to his family. I'm not suggesting that there is a lot of merit to the claim, but that is how he is presenting the argument. The question would be where there is an intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The jury would have to decide whether the implicit threat is credible (somebody plans to blow him or his family out of the sky), a decision would probably turn on the number of death threats he receives.</p>

<p>To expand on @user6726's answer, and get into the legal specificities, since the only duty not to do this, really, arises generally out of those predominantly criminal statutes, a &quot;legal action&quot; would resort to a tort action which is &quot;in essence is the breach of a nonconsensual duty owed another. Violation of a statutory duty to another may therefore be a tort and violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the public for whose benefit the statute was enacted may bring the action. (See <em>Hudson v. Craft</em>,33 Cal.2d 654, 660 [ 204 P.2d 1, 7 A.L.R.2d 696]; <em>Biakanja v. Irving</em>,49 Cal.2d 647, 651 [ 320 P.2d 16, 65 A.L.R.2d 1358]; <em>Wetherton v. Growers Farm Labor Assn.</em>,275 Cal.App.2d 168, 174 [ 79 Cal.Rptr. 543]; <em>McIvor v. Mercer-Fraser Co.</em>,76 Cal.App.2d 247, 253-254 [ 172 P.2d 758].) (<em>Laczko v. Jules Meyers, Inc.</em> (1969) 276 Cal.App.2d 293, 295)</p>
<p>Although these formulations are from California, these basic principles arising out of common law should not substantially differ, say, in Texas where the man resides right now, but surely, some of his flights for Tesla must include California rather frequently any ways.</p>
<p>Additionally, the points @user6726 makes about the frequency, quality, seriousness etc. of any explicit or the mere implied threat is factored in for example in the case of a cause of action for negligent or intentional infliction of emotional distress where &quot;[w]hen there is a breach of duty, &quot;a person who is in the path of negligent conduct and <strong>reasonably fears for his or her own safety may recover for resulting emotional distress.&quot;</strong> In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1493 (9th Cir. 1992). ” [Citation.] (discussing hypothetical pedestrian narrowly avoiding speeding car and <strong>indicating that threat of injury is the relevant issue</strong>); [Citation.] (quoting Potter hypothetical and holding <strong>plaintiff was not precluded from relief simply because car did not actually hit her</strong>) (<em>Taylor v. Honeywell Int'l, Inc.</em> (9th Cir. 2015) 599 F. App'x 664, 3)</p>
<p>Analogously, even if he could not show any evidence of threats in innuendo or such made overtly, it is possible that establishing that in his position any reasonable person would fear for their lives, he could be treated as one who was not threatened, but &quot;almost got hit by the threat&quot; given his personal circumstance which inflicted such emotional distress that merits action.</p>
<p>Now, whether or not a criminal violation could be established that is different question, for e.g., whether or not, for purposes of the tort action, him being plaintiff would be required to prove his case merely by the preponderance of the evidence, or the same threshold would be required as if the civil defendant would be under criminal prosecution which could be a question of its own here.</p>
<p>Although true that his flight information is public, it can reasonably be argued that a certain level of expertise knowledge is required for a layman to be able to use the raw, publicly available information to make a threat on his life which would certainly help filter out some wackos even if equally certainly could not prevent any more sophisticated or orginazied attempts on his life.</p>
<p>To decide which one is of greater concern would definitely be a question to be decided by the trier of fact.</p>

<p>Just as a clarification to your first sentence, ADSB is only required in certain airspaces and elevations. It is entirely possible and legal to fly private planes from coast to coast without ADSB, without a transponder, or even without a radio to communicate with. So it is quite possible to fly anonymously in the USA.</p>
<p>With that being said, jets are typically flying at altitudes and to airports that require ADSB.</p>
<p><a href="https://www.aopa.org/go-fly/aircraft-and-ownership/ads-b/where-is-ads-b-out-required" rel="noreferrer">https://www.aopa.org/go-fly/aircraft-and-ownership/ads-b/where-is-ads-b-out-required</a></p>
<p>I think the crux of the argument is how specific does a location have to be to be legally threatening? What is specific enough to be useful for a stalker?</p>
<ul>
<li>California state? not specific</li>
<li>LA area? Still not specific</li>
<li>LAX airport? Not that specific considering it's a massive complex with thousands of people and cars.</li>
<li>Signature FBO at LAX airport? This is a specific building</li>
</ul>

<h2>Having the information can't be illegal</h2>
<p>Elon Musk has a legal obligation to have his plane equipped with a transponder that publicly transmits its ADS-B data and transmits his flight plan under FAA regulations.</p>
<p>The flight plan has to enter public records and have to be made accessible. FAA chose to make flight tracking instantly accessible if you know the flight number on the <a href="https://nasstatus.faa.gov/" rel="nofollow noreferrer">NASS</a>. There's a list of air vehicles that are not published, like military aircraft under the <a href="https://nbaa.org/aircraft-operations/security/privacy/limiting-aircraft-data-displayed-ladd/" rel="nofollow noreferrer">FAA LADD</a>, but those can get accessed by a FOIA request.</p>
<p>Otherwise, it's actually rather easy to just... read the airwaves for the ADS-B transponder, look for a specific airplane number (which is public information!), and then read that out. There's no law against that.</p>
<h2>Using the information <em>could</em> be illegal.</h2>
<p>However, using the information in some ways could be illegal. For example, using it to try to shoot the plane down would certainly be terrorism. Using it to try and follow them in an intrusive manner could constitute stalking.</p>
<p>However, using the information to tell &quot;Someone took a flight from Here to There which is ecologically non-viable&quot; is more commentary and critique, and most certainly not defamation.</p>

<p>user6726 made some good points about stalking and intent and that the fact that only publicly-available data was used is probably no defense.</p>
<p>Specifically, there is precedent for using publicly available data in unlawful ways.</p>
<p>For example, <a href="https://law.lis.virginia.gov/vacode/title9.1/chapter9/section9.1-918/" rel="nofollow noreferrer">Code of Virginia § 9.1-918</a> prohibits certain use of public information on the state sex offender registry:</p>
<blockquote>
<p>§ 9.1-918. Misuse of registry or supplement information; penalty.</p>
<p>Use of registry information or information from the Supplement to the Registry established pursuant to § 9.1-923 for purposes not authorized by this chapter is prohibited, the unlawful use of the information contained in or derived from the Registry or Supplement for purposes of intimidating or harassing another is prohibited, and a willful violation of this chapter is a Class 1 misdemeanor. For purposes of this section, absent other aggravating circumstances, the mere republication or reasonable distribution of material contained on or derived from the publicly available Internet offender database shall not be deemed intimidation or harassment.</p>
</blockquote>
<p>So, just downloading or sharing the listing of the convicted sex offender across the street is not inherently a violation, but can become a violation if your sharing is done with intent to harass or intimidate. For example, holding a local community meeting in which you share the public profile of a neighbor who just got out of prison for child rape is probably acceptable, while printing their profile out on posterboard and picketing their home is probably not.</p>
