Stephen S. Wu-- SL: Legal Writer, swu@ckwlaw.com, (650) 917-8045, 166 Main Street, Los Altos, CA 94022

Delta Seeks Dismissal of California AG Suit

In my last post about the mobile app privacy lawsuit by California’s Attorney General against Delta Airlines, I talked about the recently filed complaint in San Francisco’s Superior Court. The AG claimed that Delta Airlines violated California’s Online Privacy Protection Act by offering a mobile app, Fly Delta, that does not have a privacy policy. For a copy of the complaint, click here. Delta is now seeking dismissal of the claims in the complaint.
Delta’s counsel is now seeking dismissal of the case via a California procedure called a “demurrer.” A demurrer tests the sufficiency of the allegations in a complaint. It assumes the facts alleged in the complaint are true, and calls for the court to determine whether or not the complaint’s claims are legally sufficient. Here, Delta has two main arguments, as stated in its reply brief, which you can download here. (The other demurrer documents are not available online.)

First, Delta contends that federal law -- the Airline Deregulation Act -- preempts California’s Online Privacy Protection Act (OPPA) to the extent OPPA would regulate topics “related to” airline prices, routes, or services. Under Article VI of the U.S. Constitution, federal law is the law of the land. Federal law trumps state laws that are inconsistent or would frustrate the achievement of federal policy. Also, some federal law “occupies the field” and takes up the subject matter in a way that leaves no room for states to regulate that field. Here, Delta claims that federal law gives the Department of Transportation the exclusive right to govern airline commercial practices, including their privacy practices, and precludes state regulation.

Second, as foreshadowed in my previous blog posts, Delta is raising the issue of whether a mobile app is an “online service” within the meaning of OPPA. It does not see a mobile app’s mere use of the Internet as bringing an app within the meaning of “online service.” It said that the legislature could have encompassed apps more broadly when OPPA was enacted, but did not.

I can see both issues as ones that could go either way. First, Delta begs the question as to whether or not OPPA’s regulation of privacy is “related to” airline “service.” Delta argues for a broad reading of “related to” and implicitly views “service” as a broad term too. But a narrow view of “service,” in which the court focuses only on the carriage of passengers, may mean that privacy practices are outside the purview of the Airline Deregulation Act. I believe this issue will turn on how broadly the court construes the reach of the Act. If the courts see the regulation of mobile privacy practices as outside the core expertise of DOT, they may construe the Act narrowly.

On the second issue, I had the same concern as Delta does about the language of the law as it applies to mobile apps. As a guess, however, I believe it more likely that a court will construe “online service” broadly to include services that connect to mobile devices via an app and the mobile Internet than exclude them. However, I think it would be a good idea for the legislature to clarify OPPA’s scope. The legislature enacted OPPA before widespread mobile Internet usage, and this argument shows the need for further refinement of OPPA.

I will continue to watch this case for further developments.
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