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:
- State the period of time your company retains such information and what specific data points you retain;
- State any specific sources for personal information or other such information your company obtains directly from consumers;
- Describe the privacy and security protections your company provides for personal information you maintain;
- State whether you provide consumers the right to (i) access the information you maintain about them and (ii) correct such information;
- 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
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.