California Attorney General Kamala Harris recently filed her first privacy suit against a mobile app developer since launching her major push for mobile apps to provide adequate privacy notices. As you may recall, the California Attorney General has been actively enforcing California’s privacy laws and has entered into an agreement with major app platforms to require app developers to provide consumers with links to their privacy policies. More information on this agreement is available here. 

As a sign to the industry that California is serious about privacy, the Attorney General recently filed a lawsuit against Delta Air Lines for failure to include a privacy policy in its Fly Delta mobile app. According to the complaint, the Delta application violates a 2004 California law requiring conspicuously posted privacy policies. After filing the lawsuit, the Attorney General released a statement that “losing your personal privacy should not be the cost of using mobile apps” and reaffirmed her stance that California law clearly requires all mobile applications to provide privacy policies to consumers.

Delta apparently failed to heed the Attorney General’s warnings to the industry and to Delta in particular.  In October, the Attorney General’s office sent letters to approximately 100 application makers, including Delta, notifying them that their applications did not incorporate privacy policies and giving them 30 days to respond or update their apps. Attorney General Harris has also been reported to have tweeted United Airlines for a similar infraction, stating “Fabulous app, @United Airlines, but where is your app's #privacy policy?” United updated its app with a privacy policy. Delta did not. Based on Delta’s failure to remedy its Fly Delta app, Attorney General Harris has petitioned the court for an immediate change to the app and monetary damages.

This recent lawsuit is a sign to all mobile app developers that mobile apps should include appropriate privacy policies. Absent and inaccurate privacy notices may result in an action by the California Attorney General or even the Federal Trade Commission. 

Arent Fox is continuing to monitor issues related to privacy. Please contact Anthony Lupo, Sarah Bruno, or Eva Pulliam with questions.