Fly Delta Mobile App Ducks Suit by California

     (CN) — California has no case against Delta for claims that the airline collected consumers’ personal information through its mobile app without a privacy policy in place, a state appeals court ruled.
     California sued Delta Air Lines in San Francisco four years ago, alleging its Fly Delta app has collected millions of customers’ locations, photos, phone numbers, email addresses, credit and debit card numbers and expiration dates, gender and passport details.
     Plus, the app had no privacy policy, which has been required by the California Online Privacy Protection Act, or OPPA, since 2004, according to the complaint.
     Attorney General Kamala Harris said the state sent Delta a letter more than 30 days before filing the complaint, notifying it of its privacy violations.
     But Delta allegedly never followed through on its reported promise to provide the requested information.
     The state sought $2,500 for each violation of the unfair competition law proved at trial, and an injunction, attorney’s fees and costs.
     Delta filed a demurrer, arguing that the Airline Deregulation Act of 1978 expressly preempted the lawsuit.
     The superior court agreed, dismissing the complaint with prejudice.
     The state appealed, but California’s First District Appeals Court affirmed the lower court’s ruling Wednesday.
     “If each state were to require Delta to comply with its own version of the OPPA, it would force Delta to design different mobile applications to meet the requirements of each state,” Judge Martin Jenkins wrote for the three-judge panel. “And, indeed, enforcement of the OPPA’s privacy policy requirements might well make it impossible for an airline to use a mobile application as a marketing mechanism at all.”
     The appeals court also rejected the attorney general’s claim that the OPPA would have a peripheral effect, at best, on ticket prices, routes, or airline services.
     “Because the OPPA would require Delta to meet state standards regarding privacy policy requirements in place of the market forces currently dictating Delta’s selection and design of its Fly Delta mobile application, the effect of the OPPA would not be ‘tenuous, remote or peripheral,'” Jenkins wrote. “Nor are we persuaded by the attorney general’s assertion that the cost to Delta to comply with the OPPA would be minimal because within a day of the state filing its complaint Delta was able to post a privacy policy for the Fly Delta mobile application.”
     The 1978 law expressly preempts the state’s lawsuit, according to the ruling.
     “To compel Delta to comply with the OPPA would effectively interfere with the airline’s ‘selection and design’ of its mobile application, a marketing mechanism ‘appropriate to the furnishing of air transportation service,’ for which state enforcement has been held to be expressly preempted by the [Airline Deregulation Act],” Jenkins wrote.
     The court awarded Delta costs on appeal, and refused to let the attorney general amend the complaint.
     “As explained by the high court, ‘the [Airline Deregulation Act’s] purpose … leave[s] largely to the airlines themselves, and not at all to states, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,'” Jenkins wrote, quoting the U.S. Supreme Court’s 1995 decision in American Airlines Inc. v. Wolens. (Emphasis in original).
      Attorney General’s Office spokeswoman Rachele Huennekens said the state is reviewing the decision.
     “The court didn’t find Delta was in compliance with CalOPPA, only that federal law preempts a state’s ability to hold an airline accountable for allegedly violating California law,” Huennekens wrote. “Attorney General Kamala Harris is committed to continuing to protect Californians’ rights to privacy online.”
     Delta’s Latham & Watkins attorneys David Schindler in Los Angeles, and Jennifer Archie and Drew Wisniewski in Washington, D.C., as well as amicus curiae Robert Span with Steinbrecher & Span in Los Angeles, did not return requests for comment Thursday.

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