Antitrust Law Daily Wrap Up, PRIVACY NEWS: California AG’s Lawsuit Against Delta Air Lines over Mobile App Privacy Policy Dismissed, (May 13, 2013)

The Superior Court of California in San Francisco has dismissed with prejudice a lawsuit by the California Attorney General asserting that Delta Airlines violated the California Online Privacy Protection Act by failing to conspicuously post a privacy policy within its mobile application, informing users what personally identifiable information is being collected and how that information is used (State of California v. Delta Air Lines, Inc., May 9, 2013, Miller, M.).

A complaint filed December 6 charged that, since 2010, Delta has operated a mobile app—called "Fly Delta"—enabling users to check-in online for an airline flight, view reservations for air travel, rebook cancelled or missed flights, pay for checked baggage, or save a geo-location. Despite collecting substantial personally identifiable information (such as a user’s full name, telephone number, email address, frequent flyer account, or pin code), the "Fly Delta" application allegedly does not provide a privacy policy.

The California Online Privacy Protection Act (Cal. Bus. & Prof. Code §§22575-22579) requires commercial operators of websites and online services (including apps) that collect personally identifiable information to conspicuously post a privacy policy. Failure to comply with the requirements of the Act can constitute a violation of the California Unfair Competition Law and subject a website or online service operator to penalties of up to $2,500 for each violation.

The complaint charged Delta with operating a mobile app that runs on smart phones and other devices and collects personally identifiable information, but failing to post a privacy policy within the app. On October 26, 2012, the California Attorney General sent a notification of noncompliance to Richard B. Hirst, Senior Vice President and General Counsel of Delta Airlines in Atlanta, Georgia. On October 30, 2012, Delta released a statement that it had received the letter and intended to provide the required information. As of the date of the complaint, the "Fly Delta" app still did not have any conspicuously posted privacy policy, the action alleged.

In its complaint, the state claimed that Delta violated the Unfair Competition Law, subjecting the airline to penalties, attorney fees, and costs of suit.

The case is No. CGC-12-526741.

Attorneys: Adam Miller, Supervising Deputy Attorney General, for the People of the State of California. David J. Schindler (Latham & Watkins LLP) for Delta Air Lines, Inc.

Companies: Delta Air Lines, Inc.

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