## Facts

- After September 11, 2001, NASA requested passenger data from Northwest Airlines to study methods to improve airline security.
- Northwest provided passenger name records (PNRs) containing reservation and travel-related details (e.g., passenger identity, itinerary, payment and related booking information).
- Plaintiffs (Northwest customers) alleged Northwest’s website privacy policy represented that personal information would be shared only as needed to complete travel arrangements.
- Plaintiffs claimed the disclosure to NASA, not involved in individual travel arrangements, contradicted the privacy policy.
- Multiple putative class actions were consolidated in the District of Minnesota, and Northwest moved to dismiss under Rule 12(b)(6).

## Issues

1. Whether disclosure of PNRs to NASA stated a claim under the Electronic Communications Privacy Act (Stored Communications Act) for unlawful disclosure of electronic communications or customer records.
2. Whether PNRs and Northwest’s activities fell within the Fair Credit Reporting Act’s regulation of “consumer reports” and “consumer reporting agencies.”
3. Whether the Airline Deregulation Act preempted state-law claims challenging an airline’s collection, use, or disclosure of passenger data connected to reservations and travel services.
4. Whether plaintiffs plausibly stated non-preempted state-law claims (contract, warranty, negligent misrepresentation, invasion of privacy, and trespass) based on the privacy policy and the alleged disclosure.

## Decision

- The court denied plaintiffs’ request to stay the case pending possible multidistrict litigation proceedings and ruled on the motion to dismiss.
- The court granted Northwest’s Rule 12(b)(6) motion in full and dismissed all claims.
- The court held the ECPA claim failed because PNRs were commercial reservation records, not protected electronic communications or records held by a covered electronic communication service in the relevant sense.
- The court held the FCRA claim failed because Northwest was not a “consumer reporting agency,” and PNRs were not “consumer reports” prepared for consumer-reporting purposes.
- The court held the Airline Deregulation Act preempted state-law claims to the extent they sought to apply state statutes or external state-law standards to airline services, including data practices tied to reservations and related customer service.
- The court dismissed remaining contract- and tort-based theories for insufficient pleading, including lack of a cognizable contract term and failure to allege actionable reliance or concrete damages, and failure to satisfy elements of the asserted privacy and trespass theories.

## Legal Principles

- The Stored Communications Act does not apply to a company merely because it uses electronic systems to maintain commercial transaction records; plaintiffs must allege disclosure of protected “electronic communications” or qualifying customer records by a covered service provider.
- The FCRA applies to entities that assemble or evaluate information for the purpose of furnishing “consumer reports”; maintaining reservation data for operational purposes does not make an entity a consumer reporting agency or its records consumer reports.
- The Airline Deregulation Act broadly preempts state laws and claims “related to” airline prices, routes, or services; attempts to regulate an airline’s service-related customer data practices through state statutes may be preempted.
- Claims premised on a website privacy policy require plausible allegations of enforceable obligations and cognizable injury; generalized discomfort or speculative risk from disclosure is insufficient.
- Privacy and property tort theories based on disclosure of information voluntarily provided in a commercial transaction require satisfaction of specific state-law elements (including offensiveness and legally recognized injury) and cannot rest solely on alleged policy inconsistency.

## Conclusion

The court dismissed consolidated passenger class claims challenging Northwest’s disclosure of PNRs to NASA, holding that federal privacy and credit-reporting statutes did not reach the alleged conduct, that the Airline Deregulation Act preempted substantial portions of the state-law theories, and that the remaining contract and tort claims were inadequately pleaded.


In re Nw. Airlines Privacy Litig., No. 04-126 (PAM/JSM) (D. Minn. June 6, 2004)