Privacy Litigation Alert: First Lawsuit Filed Under California's Online Privacy Protection Act

by Fenwick & West LLP

The People of the State of California v. Delta Air Lines Inc., No. 12-526741 (Superior Court for the State of California, City and County of San Francisco filed Dec. 6, 2012).

On Thursday, December 6, 2012, California Attorney General Kamala D. Harris filed the first enforcement action under California's Online Privacy Protection Act (CalOPPA), marking the latest step in the increasing regulatory enforcement of California's online privacy law. The complaint alleges that Delta Airlines violated the law by failing to include a CalOPPA compliant privacy policy within its Fly Delta mobile app. CalOPPA has been in place for eight years, but the Attorney General has recently made its enforcement a priority, especially in the mobile app market.

California's Online Privacy Protection Act (CalOPPA)
CalOPPA, Cal. Bus. & Prof. Code §§ 22575-22579, applies to any operator of a commercial website or online service – including a mobile app that collects personally identifiable information about consumers residing in California.

The statute defines personally identifiable information to include:

  • A first and last name.
  • A home or other physical address, including street name and name of a city or town.
  • An e-mail address.
  • A telephone number.
  • A social security number.
  • Any other identifier that permits the physical or online contacting of a specific individual.
  • Information 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 identifier described above.

The law requires the operator of a website or online service that collects personally identifiable information to "conspicuously post" its privacy policy. For operators of online services like mobile apps the required privacy policy must be "reasonably accessible . . . for consumers of the online service." According to the Attorney General, having a website with the applicable privacy policy conspicuously posted may be adequate, but only if a link to that website is "reasonably accessible" to the user within the app. This can present design challenges in the mobile environment, where screen space is at a premium.

The privacy policy must:

  • Identify categories of personally identifiable information that the operator collects.
  • Identify categories of third-parties with whom the operator may share personally identifiable information.
  • Describe the process the consumer can use to review and request changes to stored information, if such a process exists.
  • Describe the process the website or online service operator uses to notify consumers about material changes to the operator's privacy policy.
  • Identify the privacy policy's effective date.

A website or online service operator violates the law if it does not post the required privacy policy within 30 days after being notified of non-compliance.

Increasing Enforcement of CalOPPA
On February 22, 2012, Attorney General Harris reached an agreement with companies in the mobile app market to help enforce the state's privacy laws. Core principles included a commitment to post the required privacy policy in mobile apps, an agreement to provide space for privacy policies in app distribution platforms, and an agreement to implement a method of reporting and responding to reports of non-compliance. Apple, Google, Microsoft, Amazon, Hewlett-Packard, and Research In Motion adopted the Joint Statement of Principles in February, and Facebook joined the group in June.

About five months after the Joint Statement of Principles, on July 19, 2012, the Attorney General created a new Privacy Enforcement and Protection Unit within the Department of Justice eCrime Unit. The Privacy Unit's mission is to enforce federal and state privacy laws regulating the collection, retention, disclosure, and destruction of private or sensitive information by individuals, organizations, and the government. CalOPPA is one of the laws the Privacy Unit is charged with enforcing.

On October 30, 2012, Attorney General Harris began notifying up to 100 mobile app developers that they were not in compliance with CalOPPA's privacy policy requirements. The Attorney General's letters asked app developers to respond within 30 days with either (1) specific plans and a timeline to comply with CalOPPA or (2) an explanation of why their app is not covered by CalOPPA.

Just a few days after the 30 day period ended, on December 6, 2012, the Attorney General filed the first legal action under CalOPPA against Delta Airlines, alleging that its Fly Delta app violates the online privacy law.

Allegations Concerning the Fly Delta App
The Attorney General's lawsuit targets the Fly Delta application for smartphones and other electronic devices. The app allows customers to check in online, view reservations, pay for checked baggage, book flights, and perform other tasks related to flying.

The Attorney General's complaint alleges that the Fly Delta app collects personally identifiable information about customers, including geo-location data, photographs, user's full name, street addresses, telephone numbers, email addresses, account number and flight information, credit and debit card numbers, date of birth, gender, passport number, and employer information. The complaint also alleges that a privacy policy is not available within the app itself.

According to the Attorney General's complaint, Delta's website includes a privacy policy, but the policy does not mention the Fly Delta app and is not reasonably accessible to consumers of the Fly Delta app. The complaint also alleges that website's privacy policy does not address certain types of information the app collects, including photographs and geo-location information.

The complaint seeks an injunction prohibiting Delta from distributing the app until it complies with CalOPPA, in addition to a penalty of up to $2,500 for each copy of the non-compliant app downloaded by California consumers.

Focus on Mobile Apps
Although CalOPPA applies to any website or online service that collects personally identifiable information, the Attorney General's focus on mobile app developers is notable, particularly in light of the absence of enforcement actions in the eight years the statute has been in effect. The Attorney General's office sent letters like the one it sent to Delta to numerous other app developers, and the Delta lawsuit may be just the first of many future enforcement actions.


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.

© Fenwick & West LLP | Attorney Advertising

Written by:

Fenwick & West LLP

Fenwick & West LLP 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.