Designer Skin LLC v. S & L Vitamins, Inc., et al.
Edwin Dyer, et al. v. Northwest Airlines Corp., et al.
2004 U.S. Dist. Lexis 18010 (D. North Dakota, September 8, 2004)
Court Holds That Airline's Disclosure Of Personal Information Concerning Passengers Is Nonactionable
Disclosure Does Not Violate Electronic Communications Privacy Act
Northwest Airlines operates a web site at which it sells airline tickets to the public. In response to a governmental request received shortly after September 11, 2001, Northwest disclosed personal information about its passengers, including names, addresses, travel itinerary and credit cards, to NASA. NASA sought such information to aid in a study of airline security.
Subject to certain exceptions, the ECPA prohibits those who provide an "electronic communication service" from "knowingly divulge[ing] a record or other information pertaining to a subscriber or customer of such service …. to any governmental agency." 18 U.S.C. §2702(a)(3).
The ECPA defines "electronic communication service" as "any service which provides the users thereof the ability to send or receive wire or electronic communications" 18 U.S.C. §2510 (15). Despite the fact that consumers can use Northwest's web site to send or receive electronic communications to Northwest, the Court held that Northwest was not a provider of an "electronic communication service" within the meaning of the ECPA, and, accordingly, that its strictures did not apply here. In reaching this result, the Court followed the decisions of other courts, which "have concluded that 'electronic communication service' encompasses internet service providers as well as telecommunication companies whose lines carry internet traffic, but does not encompass businesses selling traditional products or services online …" or via a web site.
Minnesota District Court Reaches Same Result
The Minnesota District Court dismissed these claims. The ECPA did not apply to Northwest because "defining 'electronic communication service' to include online merchants or service providers like Northwest stretches the ECPA too far." Plaintiffs could not pursue their breach of contract claims because "the privacy statement on Northwest's web site did not constitute a unilateral contract" under the "usual rule in contract cases . . . that 'general statements of policy are not contractual.'" Finally, the Minnesota District Court dismissed state law claims plaintiffs asserted under the Minnesota Deceptive Trade Practice Act, and for negligent misrepresentation, finding the same pre-empted by the Federal Airline Deregulation Act.