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Abstract

This concept paper evaluates the pros and cons of establishing commercial aviation safety privilege beyond the almost uniquely United States Department of Defense (DoD) legal protection built upon court precedence (stare decisis) as a statutory concept that can apply across all aviation investigations. The protection offered under Title 49 CFR 1114 only applies to the information provided that is not part of the safety investigation and allows full release of interviews that pertain to the investigation, which is further applied in the National Transportation Safety Board Aviation Investigation Manual (2002). The Supreme Court of the United States recognized different privileged communication under the common-law principle, which also provides a fundamental guideline to building a statutory argument for safety privilege (Federal Rules of Evidence 501, 2022). By adding statutory guidance, the concept can expand, potentially increasing the ability of aviation safety investigators to gain honest aircrew testimony and increase safety. Guidance can make way for international agreements and participation in the aviation safety process. However, there are consequences to expanding a common law to one with statutory authority, which may be sufficient to argue against the benefits of a statute for aviation safety privilege.

Acknowledgements

I would like to thank Professor John Sable for helping me shape this discussion and Chris Van Geystel for helping edit the draft.

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