In re Nw. Airlines Privacy Litig. - No. 04-126 (PAM/JSM), 2004 U.S. Dist. LEXIS 10580 (D. Minn. June 6, 2004)

Rule:

Whether a defendant is a provider of electronic communications service under the Electronic Communications Privacy Act (ECPA), 18 U.S.C.S. § 2701 et seq., is a legal question, not a factual issue. Defining electronic communications service to include online merchants or service providers like an airline company stretches the ECPA too far. Where a company is not an internet service provider and purchases its electronic communications service from a third party, the company is simply not an electronic communications service provider and therefore cannot violate 18 U.S.C.S. § 2702.

Facts:

Plaintiffs are customers of Defendant Northwest Airlines, Inc. ("Northwest"). After September 11, 2001, the National Aeronautical and Space Administration ("NASA") requested that Northwest provide NASA with certain passenger information in order to assist NASA in studying ways to increase airline security. Northwest supplied NASA with passenger name records ("PNRs"), which are electronic records of passenger information. PNRs contain information such as a passenger's name, flight number, credit card data, hotel reservation, car rental, and any traveling companions. Plaintiffs contend that Northwest's actions constitute violations of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2701 et seq., the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, and Minnesota's Deceptive Trade Practices Act ("DTPA"), Minn. Stat. § 325D.44, and also constitute invasion of privacy, trespass to property, negligent misrepresentation, breach of contract, and breach of express warranties. The basis for most of Plaintiffs' claims is that Northwest's website contained a privacy policy that stated that Northwest would not share customers' information except as necessary to make customers' travel arrangements. Plaintiffs contend that Northwest's provision of PNRs to NASA violated Northwest's privacy policy, giving rise to the legal claims noted above. Northwest has now moved to dismiss the Amended Consolidated Class Action Complaint (hereinafter "Amended Complaint"). Northwest contends that Plaintiffs cannot make out a claim under either the ECPA or the FCRA, that some of Plaintiffs' claims are preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), and that the remainder of Plaintiffs' claims fail as a matter of law.

Issue:

Could the companies be held liable under the ECPA?

Answer:

No

Conclusion:

The court held that dismissal was appropriate because the customers had failed to state any claims on which relief could be granted. The companies could not be held liable under the ECPA because they were not electronic communications service providers. They could not be held liable under the FCRA because they were not consumer reporting agencies and the PNRs did not constitute consumer reports under the ECPA. The DTPA claim was preempted under 49 U.S.C.S. § 41713(b).