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Updated: Friday, February 3, 2006 2:09 PM

OST-2004-16939 - Northwest Airlines - Complaint and Request for Investigation, Injuction and Other Relief - Passenger Screening Data

Northwest Airlines, Inc.

OST-04-16939 - Passenger Screening Data

January 20, 2004

Complaint and Request for Investigation, Injunction, and for Other Relief

This complaint concerns the privacy practices of Northwest Airlines, Inc.  As set forth in detail below, NWA has engaged in an unfair and deceptive practice by disclosing consumer personal information to the National Aeronautics and Space Administration, in violation of 49 U.S.C. § 41712.

NWA engaged in this activity without the knowledge or consent of the affected consumers, and in contravention of public assurances that the personal information it collects would not be shared with third parties without individuals' Consent. The compelling public interest in this case requires the Secretary of Transportation to investigate NWA's practices, to enjoin NWA from continuing the practice, and to provide such remedies as the Secretary deems appropriate.

Exhibits

By: EPIC, Marc Rotenberg

EPIC's FOIA Requests with NASA


OST-04-16939 - Passenger Screening Data

January 27, 2004

Re: Certificate of Service

By: EPIC, Marcia Hofmann


OST-04-16939 - Passenger Screening Data

January 30, 2004

Re: EPIC Agrees to Northwest's Request for an Extension to File an Answer

This letter shall serve to confirm that on January 29, 2004, Kirkland & Ellis LLP, counsel for Northwest Airlines,  Inc., informed you that we had agreed, with counsel for the Electronic Privacy Information Center, to an extension of Northwest's time to answer the complaint in the above-captioned matter until February 27, 2004. You approved this extension.

Counsel: Kirkland & Ellis, Eric Wolff, 202-879-5179


OST-04-16939 - Alleged Violation of 49 USC Section 41712

January 29, 2004

Re: Northwest Airlines, Inc. Privacy Practices

Please find enclosed a complaint filed by the Minnesota Civil Liberties Union with the Federal trade Commission that Northwest Airlines breach of the privacy of its passengers was an unfair and deceptive practice.

We believe that the Department of Transportation has analogous authority under 49 U.S.C. 6 41712 to enjoin NWA from engaging in unfair and deceptive practices.

By: Charles Samuelson


OST-04-16939 - Passenger Screening Data

February 27, 2004

Answer of Northwest Airlines

The Electronic Privacy Information Center in its January 20, 2004 complaint alleges that, in the aftermath of September 11, 2001, it was "unfair" or "deceptive" for Northwest Airlines to use the information that passengers voluntarily provide when they purchase travel, as part of a controlled, government-sponsored study of how computer processing of such information might improve public safety on airlines. The Minnesota Civil Liberties Union essentially echoes these charges in its complaint of January 29, 2004. The research opportunity presented to Northwest Airlines by NASA's Ames Research Center in the wake of the worst terrorist attacks in national history (attacks which are not even referenced in EPIC's complaint) was an appropriate instance of industry and government cooperation that was necessary and widespread in response to the terrorism of September 11. The complaints are disturbingly lacking in context, and the legal claims are meritless. Northwest Airlines categorically denies that its actions were "unfair," "deceptive," or in any manner violated 49 U.S.C. § 41712, for the following reasons:

Counsel: Kirkland & Ellis, Eric Wolff, 202-879-5000


OST-04-16939 - Passenger Screening Data

March 9, 2004

Request of the Electronic Privacy Information Center for Leave to File a Reply and Reply of EPIC

EPIC does not dispute that the horrific events of September 11, 2001 fundamentally changed the way the airline industry operates. However, NWA should not be permitted to rely on those events as an excuse for being dishonest with passengers about what the airline does with their personal information. The Department has a responsibility set out in law, in public representations, and in official communications to foreign governments, to enforce representations that airlines make to consumers regarding use of passengers' personal information. NWA, at all times relevant to the complaint, assured consumers who provided personal information through NWA' s website that they had "complete control" over the use of that information. At no time did NWA inform passengers that it would disclose personal information to the government without the knowledge or consent of the affected consumers, despite the fact that it expressly and specifically disclosed other uses of passenger information. Indeed, company officials expressly told the public that NWA had not disclosed this type of information to the government ‑ after the airline had, in fact, made such disclosures. For these reasons, the Department should investigate NWA's privacy practices and impose appropriate sanctions for unfair and deceptive trade practices in violation of 49 U.S.C. § 41712.

By: EPIC, Marc Rotenberg - http://www.epic.org/


OST-04-16939 - Passenger Screening Data

March 9, 2004

Re: Consent to File

This letter confirms that on March 4, 2004, Kirkland & Ellis LLP, counsel for Northwest Airlines, Inc., consented to the Electronic Privacy Information Center's filing of a reply to Northwest's Answer in this matter. It was further agreed that EPIC will file this reply with the Department of Transportation on March 9, 2004.

Counsel: EPIC, Marcia Hofmann


OST-04-16939 - Passenger Screening Data

April 5, 2004

Motion for Leave to File Supplemental Response

The Department requested that Northwest Airlines, Inc. respond to certain allegations and arguments in the complaint and reply of the Electronic Privacy Information Center. In particular, the Department requested that Northwest Airlines address the reported statements by Northwest Airlines officials in newspaper stories in September 2003. See EPIC 77 26-27. To respond to the Department's request, Northwest Airlines' hereby moves for leave to file a supplemental response to EPIC'S complaint and reply.

Counsel: Kirkland & Ellis, Eric Wolff, 202-879-5000


The Electronic Privacy Information Center against Northwest

Order 04-09-13
OST-04-16939 - Passenger Screening Data

Issued and Served September 10, 2004

Order Dismissing Complaint

By this order we dismiss the third-party complaint of the Electronic Privacy Information Center, joined by the Minnesota Civil Liberties Union, against Northwest Airlines, Inc., alleging that Northwest violated its own privacy policy, and committed an unfair and deceptive practice in violation of 49 U.S.C. § 41712, when it shared Passenger Name Record data with the Ames Research Center at the National Aeronautics and Space Administration in the months immediately following the terrorist attacks of September 11, 2001, and when its representatives, responding to press reports that JetBlue Airways had acknowledged sharing passenger data with a Department of Defense contractor, made public statements in September 2003, that Northwest did not, and would not, share passenger data "in the way that JetBlue Airways has."

Specifically, we find that Northwest’s privacy policy did not unambiguously preclude it from sharing data with the federal government; that, even if it did, such a promise would be unenforceable as against public policy, as Northwest is required by law to make such records available to the Department and to other federal agencies "upon demand"; and that, in this case, the record contains no evidence of actual or likely harm to those passengers who provided Northwest with the data that it shared.

By: Samuel Podberesky


OST-04-16939 - Passenger Screening Data

September 20, 2004

Petition of the Electronic Privacy Information Center for Review of Order Dismissing Complaint

The DOT erred by failing to correctly apply the test for a violation of consumer protection law. While the Order announces the appropriate test for unfair and deceptive trade practices set out by statute and adopted by the Federal Trade Commission it subsequently ignores the established analysis for deceptive trade practices. Rather than apply the proper test for deceptive practices, the DOT engaged in a contrived ends– oriented interpretation of WA's privacy policy that is inconsistent with relevant precedent and the reasonable consumer test.

Counsel: EPIC, Marc Rotenberg, 202-483-1140


OST-04-16939 - Passenger Screening Data

October 4, 2004

Response of Northwest Airlines to EPIC's Petition for Review of Order Dismissing Complaint

First, the premise of EPIC’s complaint is that a reasonable consumer would adopt EPIC’s interpretation of Northwest Airlines’ on-line privacy policy and therefore would have been misled. The Department explained how EPIC’s interpretation of the language of the policy -- the same language that a reasonable consumer would interpret -- is not reasonable, which means that a reasonable consumer would not have adopted EPIC’s interpretation and would not have been misled.

Second, aside from the language of the policy, the Department recognized that "[tlhe privacy expectations of persons traveling by air have long been tempered by the sometimes-countervailing expectation of reliably arriving at one’s destination safely." Order at 14. Those expectations inform how the reasonable consumer would interpret Northwest Airlines’ privacy policy and whether a reasonable consumer would feel misled. The Department’s estimation of the flying public’s privacy expectations is founded upon settled caselaw, the Department’s expertise, and common sense. EPIC’s petition does not even contest this portion of the Department’s reasoning.

Finally, EPIC errs in arguing that the absence of consumer harm is "irrelevant" to the Department’s exercise of enforcement discretion. Petition at 7-8. The Department properly took into account that agency resources should not be expended where "measurable harm is so utterly lacking." Order at 15. "The agency is in a unique -- and authoritative -- position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way." In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991). In addition, the Department found that Northwest Airlines’ actions were morally defensible. Order at 14. Thus, even if EPIC had managed to state a technical claim of unfair practices (which EPIC did not), Northwest Airlines did not do anything inherently wrong and no one was injured. No reasonable regulator expends its time and money investigating morally defensible actions that harmed no one, and the Department never committed to the American public or to Europe that it would do so.

Counsel: Kirkland & Ellis, Jay Lefkowitz, 202-879-5000


OST-04-16939 - Passenger Screening Data

October 6, 2004

Re: Omitted Certificate of Service

Enclosed please find an original and seven copies of the Certificate of Service which was inadvertently omitted from our Response of Northwest Airlines, Inc., to EPIC’S Petition for Review of Order Dismissing Complaint, filed on October 4, 2004, in the above-referenced matter. All parties in interest were served on the date of filing.

Counsel: Kirkland & Ellis, Eric Wolff, 202-879-5179, ewolff@kirkland.com


The Electronic Privacy Information Center against Northwest Airlines, Inc.

Order 2005-03-09
OST-04-16939 - Passenger Screening Data

Issued and Served March 7, 2005

Order Affirming Dismissal of Complaint

This order affirms Order 2004-9-13, dismissing the complaint filed by the Electronic Privacy Information Center, and responds to EPIC’s petition for review filed September 20, 2004.

By: Rosalind Knapp


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