In December 2012, the California Attorney General filed a lawsuit against Delta Airlines, Inc. (“Delta”) alleging that Delta violated California’s Online Privacy Protection Act by failing to post a privacy policy within its Fly Delta mobile app. It was the first mobile app enforcement action brought by the California Attorney General and closely followed the Attorney General’s warning campaign in which it sent out letters to approximately 100 app developers and companies notifying them that they were not in compliance with California’s law. Our previous coverage of the complaint is here.

Yesterday, the California Superior Court dismissed the claim, holding that the state action is pre-empted by the federal Airline Deregulation Act, which prohibits states from applying regulations on airlines related to price, routes, or services. Judge Miller stated: “In this instances it’s services. . . . I think that this case is, in effect, an attempt to apply a state law designed to prevent unfair competition, which regulates an airline’s communications with consumers, and I think it’s pre-empted.” Press coverage is available here.

This is an interesting result for the first Attorney General app enforcement action and it’s too soon to tell whether the Attorney General will appeal the decision. Unfortunately, the ruling doesn’t provide any substantive guidance, or give much comfort, to companies that can’t make similar federal pre-emption arguments. Companies with mobile apps will want to keep their seatbacks and tray tables in their upright and locked positions as we watch for the Attorney General’s next activities in the mobile privacy space.

Delta Cleared for Takeoff: Wins Dismissal of California AG Mobile App Privacy Action