In Flight Catalog: Senator Rockefeller Opens Inquiry Into Consumer Data Practices by Airlines

by Proskauer - Privacy & Data Security

Last week, Senator Jay Rockefeller (D-W.Va.) sent a letter to the top ten revenue generating passenger airlines in the United States, opening an inquiry into their practices related to charging additional fees for optional services and the collection of consumer data. With respect to consumer data, Sen. Rockefeller’s letter calls for greater transparency from airlines about how they collect, use, and disclose the personal information of consumers, citing concerns by consumer advocates that “airline policies can contain substantial caveats” and that “it is difficult for consumers to learn what information airlines and others in the travel sector are collecting, keeping, and sharing about them.” To assist the Senate Committee on Commerce, Science, & Transportation (“Committee”) in evaluating these concerns, Sen. Rockefeller has asked the airlines to provide the following information:

Do you retain personal information that your company obtains from consumers when they shop for airfares or from other sources? If yes:

a. State the period of time your company retains such information and what specific data points you retain;

b. State any specific sources for personal information or other such information your company obtains directly from consumers;

c. Describe the privacy and security protections your company provides for personal information you maintain;

d. State whether you provide consumers the right to (i) access the information you maintain about them and (ii) correct such information;

e. State whether you sell or share this information, and if you do, describe what information you share, with whom you share it, and the purposes for which you share it; and

f. Provide a copy of your company’s privacy policy and describe when and how you make this available to consumers.

Notably, Sen. Rockefeller’s letter contains an expansive definition of what constitutes “personal information” for the purposes of the questions above. A basic premise of privacy law is that consumer information has different degrees of sensitivity, and the privacy and data practices of businesses should reflect those degrees of sensitivity. Generally speaking, in the United States, special treatment and protections are accorded to consumer information deemed to be “personally identifiable information” or PII. The definition of PII varies somewhat by jurisdiction, applicable statutory requirements, binding codes of conduct, and voluntary disclosures made by businesses to consumers. Absent a specific statutory or contract provision stating otherwise, however, PII typically refers to information that, by itself, could be used to individually identify a specific consumer. Common examples of such information include a consumer’s name, postal address, telephone number, Social Security number, email address, driver’s license number, and bank account number. Under this view, IP addresses and device IDs are typically not deemed PII, because they cannot be used, on their own, to identify an individual consumer. For example, a website operator that has collected an IP address may be able to ascertain certain information about a consumer associated with that IP address, such as her potential city of residence or some web browsing activity. Without additional information from a third party (e.g., the consumer’s Internet service provider), however, it is unlikely that the web operator would be able to directly ascertain the specific identity of the consumer.

Sen. Rockefeller’s letter to the airlines does not limit the Committee’s inquiry to the typical scope of “personally identifiable information.” Instead, it requests information about “personal information” collected by the airlines, which is broadly defined in the letter to include the common examples of PII stated above and “a persistent identifier, such as a customer number held in a ‘cookie,’ a static Internet Protocol address, or processor serial number.” This is an expansive approach that leans toward the definition of “personal data” in the European Union’s Data Protection Directive (“Directive”), which is “information relating to an identified or identifiable natural person,” with an “identifiable person” being someone who can be identified “directly or indirectly.” A recital to the Directive explains that a determination of whether someone is “identifiable” should take into account “all the means likely reasonably to be used . . . to identify the said person.”

The definition of “personal information” in Sen. Rockefeller’s letter may also be a nod to the definition of “personally identifiable information” under the California Online Privacy Protection Act (“CalOPPA”), which includes “[a]ny... identifier that permits the physical or online contacting of a specific individual” and “[i]nformation concerning a user that the web site or online service collects online from the user and maintains in personally identifiable form in combination with an[other] identifier” included in the statute’s PII definition (e.g., first and last name, postal or email address). In the 2014 report issued by the California Attorney General’s office, “Making Your Privacy Practices Public,” the AG advises that these two categories of information “can be understood to include information that is collected passively by the site or service, such as a device identifier....” Delta Air Lines, one of the recipients of Sen. Rockefeller’s letter, has been the subject of a suit brought by the California AG that, among other allegations, challenged the sufficiency of Delta’s consumer disclosures with respect to its collection of PII under of CalOPPA. That suit was dismissed with prejudice in May 2013. Although the court did not state its reasons in a written opinion, one of Delta’s arguments for dismissal was that the AG’s claim under CalOPPA was preempted by federal law, specifically, the Airline Deregulation Act.

Sen. Rockefeller has long been an advocate of consumer privacy, and is one of several members of Congress who have pushed for comprehensive federal legislation establishing standards for the collection, use, disclosure, and security of consumer data. Such legislation is likely to define a category of consumer information entitled to special protections, including limitations on its sharing and use. If that definition leans toward the expansive view of “personal information” presented in Sen. Rockefeller’s letter to the airlines, rather than information that directly identifies individual consumers (i.e., PII), the impact on businesses in the United States could be significant. Currently, many businesses use IP addresses, device identifiers, and related non-PII to perform a broad range of functions, including product development and a variety of analytics. Restrictions on the use or sharing of that information, such as by a requirement that demonstrable “opt-in” prior consent be obtained, could create challenges for business operations and transactions. That, in turn, could affect product and service offerings to consumers.

Accordingly, companies should take note of how congressional inquiries into corporate privacy and data practices define the scope of consumer information under review, as potential indicia of how expansively Congress may lean if comprehensive federal privacy and data security legislation is codified.

The airlines that received Sen. Rockefeller’s letter are United, Delta, American, Southwest, US Airways, JetBlue, Alaska, Hawaiian, SkyWest, and Spirit. The airlines’ responses to the Committee are requested by Sept. 5, 2014.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Privacy & Data Security | Attorney Advertising

Written by:

Proskauer - Privacy & Data Security

Proskauer - Privacy & Data Security on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.