Northwest Privacy Lawsuit Dismissed

dritan writes "News.com is reporting that a judge has tossed out a privacy lawsuit against Northwest airlines. The plaintiffs claimed that their privacy was violated when Northwest gave their information to the government. From the judge: 'Although Northwest had a privacy policy for information included on the Web site, plaintiffs do not contend that they actually read the privacy policy prior to providing Northwest with their personal information. Thus, plaintiffs' expectation of privacy was low.' Do you always read the privacy policy?" If you haven't read a particular EULA, does that mean it doesn't apply either? Here is the Judge's order (PDF).

Comments

Contract

[nuggz]

A contract is a formal agreement. If you did not read it, you can't have agreement, and hence no contract.
Contracts can be overturned or broken if one can prove they did not understand or have an actual agreement.

Re:Contract

[lukewarmfusion]

If the person is presented with the contract, given an unhindered opportunity to read and comprehend the contract, and signs it... it's binding. Nobody will overturn it just because you signed a contract without reading it. If it was intentionally vague or deceptive, then that's cause for breaking the contract.

Re:Contract

[Anonymous Coward]

If you'd actually read the memorandum, you'd see that the court doesn't consider a privacy policy, or ANY "general policy", to be considered a contract. Kinda sinks your arguement. Also, if you'd read the memo, you'd see that the Plaintiffs apparently had no idea what they were doing and argued points of law that had no bearing on what happened. They try to say that Northwest is an "Electronic Communications Service Provider", which it is not. The Electronic Communications Privacy Act, which is what was being used as the basis for the complaint, does not extend to online merchants. The plaintiffs also do not understand the rules of court and I'm betting made real asses of themselves in the deposition phase.

The only part of the ruling which looks at all questionable is the one quote used in the /. blurb. That part does read a little strangely, but it probably refers back to the deposition phase where the plaintiffs did something bone-headed like admit that they didn't actually read the privacy agreement before buying tickets.

Re:Italian judges...

[taped2thedesk]

Italian judges often rule that when not read an EULA is void.

If a EULA falls in Italy, does anybody hear it?

Re:Italian judges...

[lukewarmfusion]

You can never verify that they actually read and understood the contents of the EULA, but you can certainly verify that they were given the opportunity and that they "agreed" to the EULA.

Even if you skip the EULA and just click "I Agree" it signifies that you were presented with the document...

The judge wouldn't throw out a contract that you signed just because you said you didn't read it before signing. He'd probably call you an idiot.

NWA Privacy Policy.

[LordPixie]

As lifted from their website. This is only the first portion, but I felt it was most relevant. For the record, the bold emphasis is not mine, but is included on the original.

nwa.com Reservations and WorldPerks Award Travel Reservations Usage Agreement And Notices

AGREEMENT BETWEEN USER AND NORTHWEST AIRLINES

This Web site is offered to the user conditioned on acceptance by the user ("User") without modification of the terms, conditions, and notices contained herein. By accessing and using this Web site, the User is deemed to have agreed to all such terms, conditions, and notices (the "Agreement").

PRIVACY POLICY

As a User of nwa.com Reservations, you are in complete control of your travel planning needs. This includes controlling the use of information you provide to Northwest Airlines and its affiliates.

When you reserve or purchase travel services through nwa.com Reservations, we provide only the relevant information required by the car rental agency, hotel, or other involved third party to ensure the successful fulfillment of your travel arrangements. We also use information you provide during User registration or as part of the reservation process to customize the content of our site to meet your specific needs and to make product improvements to nwa.com Reservations.

We do not sell individual customer names or other private profile information to third parties and have no intention of doing so in the future. We do share User information with our partners only for specific and pertinent promotional use but only if our customers have opted to receive such information. As a User of nwa.com Reservations you have the option to receive updates from Northwest and Northwest WorldPerks Partners about fare sales in your area, special offers, new Northwest Airlines services and noteworthy news. To receive this information you must register for our promotional email programs or check the appropriate box in your nwa.com Reservations Member Information profile. If you decide you would rather not receive these emails, you can always unregister or update your Member Information in nwa.com Reservations

We respect and will continue to respect the privacy of our customers who use nwa.com Reservations. For more information about protecting your privacy, please see Frequently Asked Questions or our Privacy Policy

Additionally, Northwest uses third-party advertising technology to serve ads when you visit sites upon which we advertise. This technology uses information about your visits to the sites upon which we advertise, (not including your name, address, or other personal information), to serve our ads to you. In the course of serving our advertisements to you, a unique third-party cookie may be placed or recognized on your browser. In addition, we use web beacons, provided by our ad serving partner, to help manage our online advertising. These web beacons enable our ad server to recognize a browser's cookie when a browser visits this site and to learn which banner ads bring users to nwa.com. The information we collect and share through this technology is not personally identifiable. To learn more about our third party ad serving partner, cookies, and how to "opt-out," please click here


--LordPixie

Very true

[unassimilatible]

It is astonishing that the judge seems to suggest that by not reading a contract, one is not bound to its terms!

This flies in the face of established contract law (other than allegations of procedural unconscionability). This is, however, dicta, since the judge dismissed for failure to state a claim, and did not rule on the merits of the contract claim. Even if he did, this case is not precedent, since it is not an appellate court, just a dumb trial judge editorializing.

The big problem is that the suit was poorly pleaded anyway. The dumb lawyer didn't allege a prima facie case for breach (didn't ask for contract damages), so there is no way the plaintiff could prevail on a contract cause of action. Malpractice! Jesus, I looked at the /. article, without even RTFA, and instantly thought "breach." Dumbass attorney.

Also, the judge suggests that a privacy policy is not actually part of the contract for air travel anyway, just an FYI, as in "hey, FWIW, this is our policy."

IAAL, but not your lawyer. This is not legal advice, and should not be construed as such. This is merely layman bullshit. Do not rely on it. Only a retarded baboon would do that.

Before all the knee-jerk reactions...

[restive]

...read the order and try to understand something about the law here people.
IANAL but IAALS (I Am A Law Student)
This judge ruled as a matter of law and much of this case was procedural. You cannot just allege something and bring it into court and hope that you find a judge that sympathizes. A key component of this order is Rule 12(b)(6) that allows a case to be dismissed for failure to state a claim. http://www.law.cornell.edu/rules/frcp/Rule12.htm
This concept is more complicated than it might seem to readers that don't even RTFA and just assume whatever they want to, but there are solid procedural rule in place (established by the US Supreme Court) that require certain things to be stated in order to for a claim to be properly stated. These rules are partly to promote efficiency in the court system, and also to keep incomplete causes of action out of the system because they aren't sufficiently stated.

The purpose of a motion to dismiss under F.R.C.P. 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. It is not a procedure for resolving a contest about the merits of the case. 5A Wright & Miller, Federal Practice and Procedure 1356 (West 1990)

Procedure is important. Honestly, discussions about this sort of thing may be over the heads of those that prefer to offer their rabid opinions about a topic rather than trying to understand the real issue at hand here.

Re:Government favoratism by courts.

[ecklesweb]

Well, the NWA.com privacy policy itself certainly implies it's a contract:

AGREEMENT BETWEEN USER AND NORTHWEST AIRLINES

This Web site is offered to the user conditioned on acceptance by the user ("User") without modification of the terms, conditions, and notices contained herein. By accessing and using this Web site, the User is deemed to have agreed to all such terms, conditions, and notices (the "Agreement").

etc. etc.

What I wonder is whether this decision has any effect on the types of contracts that say something to the effect of, "By accessing this site, you agree to..."

Another interesting thing to consider: does this indirectly affect the GPL? It has language like:

Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

Is the GPL invalid if the user doesn't read it? Perhaps that's a good reason to put the entire license text in the comments of the source itself.

thank you

[Prince Vegeta SSJ4]

The judges opinion specifically states

• The privacy statement on Northwest's website did not constitute a unilateral contract. The language used vests discretion in Northwest to determine when the information is "relevant" and which "third parties" might need that information. See Grenier v. Air Express Int'l Corp., 132 F. Supp. 2d 1198, 1201 (D. Minn. 2001) (Doty, J.).

Furthermore, generally a contract consists of an offer, acceptance, and consideration

• Moreover, absent an allegation that Plaintiffs actually read the privacy policy, not merely the general allegation that Plaintiffs "relied on" the policy, Plaintiffs have failed to allege an essential element of a contract claim: that the alleged "offer" was accepted by Plaintiffs.

They did not even allege that this was accepted by the Plaintiffs (even if this was considered an offer)

Next, they did not seem to allege any actual damages (under contract law)

• Damages are an essential element of a breach of contract claim, and the failure to allege damages would be fatal to Plaintiffs' contract claims. Sloggy v. Crescent Creamery Co., 75 N.W. 225, 226 (Minn. 1898).

In this case it seems the judge did what he was supposed to do: Rule on a Breach of Contract Claim.

• This is not to say that the privacy policy does not suck (misrepresentation, etc). But you have to look at the Airline Dergulation Act for that.

  There may even be a claim under another law, and there is no indication that the misrepresentation portion as covered by the ADA would aplly to non-airline matters.

Re:Government favoratism by courts.

[dramaley]

If someone does not agree to the GPL then they are still bound by copyright law, which would prevent the user from modifying or distributing the program. So, if someone wanted to legally modify or distribute a program that is licensed under the GPL, they would have to agree to the terms of the GPL first.

At least this is my understanding of it. And i am very very far from being a lawyer. I don't even know any lawyers.

Re:EULAs are non-binding for a different reason

[Anonymous Coward]

Click through contracts/EULAs are considered legaly binding by most courts in the u.s.

http://www.abanet.org/publiced/practical/books/f am ily_legal_guide/chapter_9.pdf