They lost their paychecks, livelihoods, and health insurance this spring. Now, they may lose their privacy.

As out-of-business Spirit Airlines liquidates, the planes and the landing rights aren’t the only leftovers for sale. The people overseeing the remaining assets also want to sell employee data to Google to train artificial intelligence.

At first, workers put up a big “No” when told about the plan. But over the past month, opposition has softened. A bankruptcy court hearing on the issue, after several postponements, is now set for Nov. 6.

Why does Silicon Valley want Spirit’s worker info? Because AI machines grow more useful when fed lots of real-world data on humans.

Spirit’s efforts to sell tranches of data to Google for $10 million hit several speed bumps after getting public attention in August. Criticism immediately poured from unions and businesses. Data on passengers aren’t part of the proposed sale.

“Our data simply is not for sale. We did not and do not consent,” Sara Nelson, president of the Association of Flight Attendants-CWA, AFL-CIO, told the Miami Herald in August.

But since then, several conversations have softened the opposition, including from the flight attendants union. Spirit has excluded more data from the sale and offered more privacy protections.

“The parties have made progress,” the union said in a filing on Sept. 24 with the New York federal court overseeing the Broward-based airline’s bankruptcy.

Spirit also believes it’s winning over the union, a reason the company requested that the judge push back the hearing to approve the data sale two straight times, now to Nov. 6. That’s the fourth postponement since the auction was held.

On Oct. 5, a consumer privacy ombudsman, appointed by the court to review the case, recommended that the sale go forward. The conclusions are non-binding and face criticism, and the ultimate approval is up to the judge.

The case is unusual in that public controversies over data usually involve consumers, Mayu Tobin-Miyaji, an attorney with the Electronic Privacy Information Center, told the Miami Herald. But in this case, former employees are the focus, not Spirit’s old customers, at least for now.

Known as EPIC, the nonpartisan, nonprofit focused on protecting the right to privacy in the digital age filed a request on Oct. 1 to serve as a friend of the court, on the side of the flight attendants union.

In a court filing, EPIC said “no employer has attempted to sell its employees’ data as an asset in bankruptcy prior to the instant case.”

The friend of the court request was joined by Seema Patel, associate professor of law at the University of California College of the Law, San Francisco. The case has also drawn interest from members of Congress.

On Oct. 8, Sen. Elizabeth Warren, D-Massachusetts, and Rep. Steven Horsford, R-Navada, led a joint congressional letter to Google CEO Sundar Pichai and Spirit CEO Dave Davis, saying the sale “presents unchartered territory.”

The million-dollar auction

On Aug. 14, Spirit and its representatives held an auction for large amounts of data the airline maintained. Google won with a bid of $10 million. San Francisco-based AI company Mercor was chosen as the runner-up with a $7.5 million offer.

Google agreed that the data chest would first go to a third-party firm that acts as a “deidentification agent.” That’s a company that can scrape off personally identifying characteristics. And the data awarded didn’t include the personal information of customers, both Google and Spirit said.

“We’re acquiring part of an enterprise dataset from Spirit Airlines, which can be helpful in improving our products and AI models,” Google spokesperson Gareth Evans said in an email to the Miami Herald at that time. “We will not receive any personal information from this dataset. Any data we receive will be rigorously scrubbed of any personally identifiable information by a third party before receipt.”

Still, the amount of data awarded in the auction was massive, and the move caught many by surprise. It even possibly included software and information developed by another company that was a Spirit vendor.

Google obtained access to productivity and collaboration data, “including, without limitation, email data, calendar data, chat, collaboration and messaging data, documents, presentations, spreadsheets, knowledge repositories and wikis,” according to court documents.

It encompassed potentially “the entire employment and workplace record of Spirit Airlines, including decades of payroll, timekeeping, training, travel, and recruiting files,” the flight attendant union’s initial objection said. That’s “together with approximately 100 million emails, 80,000 email accounts, 17,082,644 OneDrive items, 20,577,677 SharePoint items, and 500,000,000 Teams items.”

Other information Google would get access to comes from over 1 million time cards, 148,000 employee tax forms and over 3 million payroll records, according to court documents.

Yet, in a nod to compromise, the union over the past month has been in discussions with Spirit, and the airline has reduced the amount of data it seeks to sell.

In response to the flight attendants’ initial objection, Spirit sent out a revised proposal on Aug. 31, identifying each category of data the union was concerned about. The airline agreed to exclude “several of the most sensitive categories,” including data on health, disabilities, drug and alcohol testing, and collective bargaining, according to a court filing.

Spirit continues to work with the unions and is open to excluding even more data, a person familiar with the process told the Herald. Spirit hopes to win the support of the unions by Nov. 6.

Whose technology is it?

Meanwhile, a software company that raised objections in August thinks it’s also making progress on the proposed deal.

In August, San Francisco-based Springshot, a vendor for Spirit from 2022 to the morning of its final flights on May 2, submitted a court filing. The company objected to the data deal, saying part of what the airline was selling to Google belonged to them as intellectual property.

The tech company developed a software platform that analyzes and synthesizes tons of sources of operational data. It organized that information in ways that allow employees to know what tasks to complete and when, and make quicker real-time decisions. That ultimately helps reduce flight delays.

In the filing, the company requested that the court consider “Springshot’s ownership of substantial intellectual property utilized by Spirit Aviation for its operations and which appear to be among the categories of data Google is seeking to acquire,” and block the sale.

Yet the two companies have also shown signs of coming together.

“We have been in dialogue with Spirit’s legal counsel,” said Doug Kreuzkamp, CEO of Springshot, in interviews with the Miami Herald. That outreach began in late August, and “contact has increased since then,” he said.

The airline’s representatives have “agreed they have data in their possession that belongs to Springshot,” Kreuzkamp said. “They’re working with us to ensure our concerns are addressed.”

Yet disagreements remain over the full scope of what Springshot owns in the data being sold, said the Fort Lauderdale-born executive who headed west for his tech success. And he’s uncertain they’ll all get resolved.

“We’re not there yet,” the CEO told the Herald on Friday.

Others have also voiced concerns, including several other unions that support the flight attendants union n court filings. They include the International Association of Machinists and Aerospace Workers and the Transport Workers Union of America Local 570, Air Line Pilots Association International, and the Professional Airline Flight Control Association.

And on Sept. 29, the Allied Pilots Association, which represents American Airlines pilots, including over 700 who used to work for Spirit, objected to the data sale, saying in a court filing that it “threatens to have a chilling effect across all commercial airlines.”

The flight attendants union still has objections, too.

In its latest court filing, AFA acknowledged that Spirit agreed that employees’ identification numbers won’t be part of what’s sold, for example, because they’ll be replaced by randomized identifiers. And those will be different in each dataset. The union sees that as progress.

But Spirit has yet to agree to exclude flight attendants’ tax forms from the data sale, AFA said, a big concern.

Another worry all unions share is whether removing an individual’s identity from data is enough to protect privacy.

What’s being sold includes databases with identifying information such as Social Security numbers, date of birth, or other identifying information. That’s data that can be removed. But unstructured, or loose data, is also part of the sale. That includes Teams data, emails or chats where employees may have discussed health or personal matters. That’s more difficult to remove.

The Electronic Privacy Information Center said in the legal brief it submitted that AFA is correct to note that “certain categories of data are sensitive not because they directly reveal personally identifiable information, but because they allow inferences about individuals or small groups that contravene employees’ expectations of confidentiality.”

EPIC said it supports AFA’s request that the court order the screening and removal of employee data before the sale is permitted to proceed.

“The risk of exposure by inference is greater than ever given recent advances in artificial intelligence,” the nonprofit wrote. “AFA’s concern that confidential information could be exposed, even after deidentification, is very real.”

Fallout from the data sale

Then there are fears this case may set precedent or have long-term consequences for workers.

“Proceeding with the sale as proposed would create perverse incentives for employers to over-collect employee data,” EPIC wrote in its court filing. “If employee-confidential data can be sold as an asset, employers will be encouraged to collect as much data as possible and store it indefinitely — even if that data is not required for day-to-day operations,” the group said. That would jeopardize data security and employee privacy.

“We’re worried about the bigger picture,” said EPIC’s Tobin-Miyaji in an interview.

“There are so few protections on workers’ data,” the digital rights lawyer said. “We hope we encourage the judge to consider the privacy issues at stake.”

That’s one of the disadvantages the former employees face: lack of laws safeguarding their privacy in the workplace. Employees generally have few rights, if any, when it comes to their personal information. They are dictated by employer policy. HIPPA, or the Health Insurance Portability and Accountability Act, is the exception.

“There are no clear rules in the bankruptcy code to protect employee privacy,” Tobin-Miyaji said.

That’s in contrast to consumers who have protections in several states. For example, Spirit and Google said they’ll follow the deidentification standard adopted within the California Consumer Privacy Act in the initial auction in August. And the ombudsman appointed by the court focused on impact on the consumer and had little to say about former employees or the union’s concerns.

Kreuzkamp, the Springshot CEO, may be a Silicon Valley executive, but he’s also not pleased with the way things have played out.

“The process in place today is flawed,” he said. “There should be better provisions in place to ensure that third parties are given notice, consumers and individuals as well.”

For now, it’s up to Spirit and Google, and ultimately the judge, to decide the case.

Both companies believe they are going above and beyond what is required of them, and being considerate of former employees’ privacy concerns. They’re continuing to have talks with AFA and hope to come to an agreement, but if they can’t, they’ll push forward and request for the data sale. And there are no laws, it appears, preventing the judge from approving it.

No matter how the data saga ends, it’ll likely only be the beginning.

As the liquidation continues, Spirit Airlines plans to also auction its customer list, likely to draw a great deal of interest from other companies. It also expects to sell its internet domain.

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