Comment: Air travel could be much safer with an aviation whistleblower program. Congress should pass it now

Commercial air travel is one of the safest modes of transportation we have. But despite all the advances in air transport safety, the world witnessed the horrific crashes of two Boeing 737 MAX aircraft, which claimed the lives of a total of 346 people in Indonesia and Ethiopia in 2018 and 2019.

While it is difficult to identify a single thing that could have prevented these disasters, we know that in the future the likelihood of these incidents is greatly reduced when we allow insiders with critical security intelligence to speak out and share their concerns with regulators.

The automotive industry has learned this the hard way. Two decades ago, an employee of Japanese manufacturer Takata named Mark Lillie learned that the company was planning to use volatile ammonium nitrate in its airbag inflators as a cost-cutting measure. It was the same explosive used in the Oklahoma City bombing, and it is very unsuitable for use in airbag inflators. When Takata executives ignored explicit warnings raised by Lillie and several internal employees, Lillie felt he had no choice but to resign from Takata. Since Lillie’s resignation in 2001, these faulty airbags, which could explode violently and fire shrapnel at vehicle occupants, have killed more than two dozen people and seriously injured hundreds.

As the death toll began to mount, Lillie searched for a way to divulge what he knew. With no outside government program to report such security breaches, Lillie resorted to the media, revealing the details of Takata’s fraudulent behavior to a New York Times reporter, who published the story in 2014. Inspired by the Lillie’s story, Congress passed the Motor Vehicle Safety Whistleblower Act in 2015, which allowed auto industry insiders like Lillie to be the eyes and ears of regulators – arming the Department of Transportation and the National Highway Traffic Safety Administration (NHTSA) more and better information about serious safety violations than ever before. The recent Hyundai Motors case is a good example. Last November, NHTSA levied $81 million in penalties against Hyundai, the heaviest penalties against an automaker, for engine seizure issues that were first brought to NHTSA’s attention by Gwang Ho. Kim, a former quality control engineer at Hyundai’s South Korean plant, who submitted a tip under NHTSA’s new whistleblower program.

Today, no program exists to protect whistleblowers in the aviation industry or commercial spaceflight, which would undoubtedly save lives in the skies. But Congress can take immediate action and pass legislation establishing an aviation safety whistleblower program within the Federal Aviation Administration. Such a program, which would include the creation of a whistleblower office within the FAA and an online portal for filing whistleblowers, would provide a clearly designated channel for reporting safety violations. To offset the inherent risks of whistleblowing, the program would allow whistleblowers to report anonymously, thereby protecting their identity, include legal protections against retaliation, and provide a financial safety net in the form of financial reward.

Valuable insights from whistleblowers like former Boeing employee Ed Pierson have revealed more about the faulty technology, mechanical design and production processes that appear to have caused the Boeing 737 MAX crashes. But we wonder how many employees, from engineers to team leaders, knew about these issues before that fateful first accident in Indonesia last October? The Senate Commerce Committee is already investigating allegations that whistleblowers raised safety concerns with the FAA about the 737 MAX as early as August 2018. And in the fallout from that initial tragedy, whistleblowers could have clarified that the solution needed was not just a software fix, but a complete mechanical overhaul and requalification.

While commercial spaceflight is still somewhat nascent and has yet to see tragedies or safety incidents on the scale of the Boeing 737 MAX crashes, the lack of a whistleblower program for aerospace engineers sets a bad precedent. If an engineer or mechanic, for example, had information about a problem with a rocket engine that could endanger astronauts or commercial space pilots, they would have no sure way or incentive to bring that problem to the fore without put his entire career in the space industry at risk. Whistleblower protections would ensure that people did not have to fear retaliation from above or worry about being responsible for the death. Even the FAA has recognized the urgent need for a program to hear insider safety concerns.

The focus on risk and safety is taught to engineers early in their careers. An ABET-accredited institution requires engineers to understand the health and safety impacts their products like airplanes, bridges, and cars can have on the general public. However, once aerospace engineering students graduate from analyzing the impacts of creating a safe product, they enter an industry with no mechanism to protect the safety of others. A system that provides no protection for engineers to aggravate their concerns forces them to weigh their own livelihood against the lives of others. This is a risk no engineer should take to follow the values ​​they have been taught.

Insiders take enormous professional and personal risks when reporting wrongdoing and misconduct. Weighing the costs and benefits of changing course or being blacklisted in your chosen profession should never be a barrier to reporting wrongdoing, especially when lives are at risk. A successful whistleblower program must work in concert with existing federal law to protect whistleblowers from unlawful retaliation by company executives. It must also allow whistleblowers to keep their identity confidential when reporting violations.

As things stand, whistleblowers in the aerospace industry need to be in the spotlight when raising their concerns. Those who speak fully assume the risk of public reaction. This type of system demands that the public’s attention be diverted from technical risks to interpersonal media scandal. It allows companies to question the credibility of whistleblowers rather than take responsibility for wrongdoing.

Finally, any whistleblower program offered by the FAA should provide substantial financial incentives to industry insiders who report violations of federal aviation laws to the FAA. For example, under NHTSA’s whistleblower program, whistleblowers can receive 10% to 30% of the monetary penalties that NHTSA collects based on information provided by the whistleblower.

As demonstrated by the success of the SEC, CFTC and IRS whistleblower programs, whistleblower reward programs are one of the most powerful tools a government agency has to expose wrongdoing before disaster does not occur. Congress should empower and protect whistleblowers in the airlines and aerospace industry so those whistleblowers can protect us.

Mary Inman is a partner at whistleblower law firm Constantine Cannon. Ashley Kosak is a whistleblower who has spoken out about working conditions at SpaceX.

The opinions expressed in comments are solely the opinions of their authors and do not reflect the opinions and beliefs of Fortune.

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