'Fly Delta' May Get Grounded By California Attorney General

Author:Ms Cynthia Larose
Profession:Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
 
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Delta Airlines, Inc. may have to pay fines equal to 20 "excess bag" fees for each user that has downloaded its "Fly Delta" mobile application.  California Attorney General Kamala Harris has filed a complaint against Delta, alleging that Delta has failed to conspicuously post a privacy policy on its mobile application, in violation of California's Online Privacy Protection Act ("CalOPPA").

Over the past year, we have followed the number of incremental  steps that the California Attorney General's office has taken toward ensuring that mobile applications comply with CalOPPA's provisions, including the requirement that operators of commercial websites and online services that collect personally identifiable information from users post a privacy policy that explains what information is collected and how it is shared.  Most recently, we reported that Attorney General Harris's office had issued warning letters to the developers of 100 of the most popular mobile applications without compliant privacy policies, giving them 30 days to bring their respective applications into compliance.  At that time, a spokesperson from Delta acknowledged that they had received one such notice, and that Delta "intended to provide the requested information."

That thirty day period has since lapsed and, in a complaint filed on Thursday with the San Francisco County Superior Court,  Attorney General Harris alleges that Delta continues to engage in unfair business practices by violating CalOPPA's privacy policy requirement.  According to the complaint, the Fly Delta mobile application has been available since 2010 and has been downloaded millions of times.  The Fly Delta app collects a broad array of personally identifiable information from its users, including, among other things, geo-location data, photographs, names, addresses, telephone numbers, email addresses, date of birth, credit card numbers and expiration dates, and frequent traveler account numbers.  Although Delta's main website does contain a privacy policy,  that privacy policy is not accessible through the mobile application and does not include a full description of the information collected by Fly Delta.  Attorney General Harris is seeking an injunction against Delta preventing it from distributing the Fly Delta app, as well as a penalty of $2,500 for each violation.  For mobile app developers, "each violation" can mean $2,500 for each time the non-compliant application was downloaded.   Civil class actions...

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