Ninth Circuit: FACTA does not apply to credit card receipts sent via email

Simonoff v. Expedia, Inc., — F.3d —, 2011 WL 1991211 (9th Cir. May 24, 2011)

Plaintiff sued Expedia under the Fair and Accurate Credit Transactions Act (“FACTA”). He was upset that the electronic receipt Expedia emailed him contained the expiration date of his credit card.

The district court dismissed plaintiff’s case and he sought review with the Ninth Circuit. On appeal, the court affirmed that the electronic receipt did not violate FACTA.

FACTA provides that “no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”

The restriction applies only to “receipts that are electronically printed.” The court found that the electronic receipt did not fall into this scope. It looked to the general notion of what it means for something to be “printed”:

“Print” refers to many different technologies—from Mesopotamian cuneiform writing on clay cylinders to the Gutenberg press in the fifteenth century, Xerography in the early twentieth century, and modern digital printing—but all of those technologies involve the making of a tangible impression on paper or other tangible medium.

Since the electronic receipt was not a “tangible impression on paper or other tangible medium,” it wasn’t “printed” as defined by FACTA.

(Copyright folks might be tempted to think about how well this logic holds up, given that copyright protection extends to creative works that are reduced to a tangible medium of expression, and there is no dispute that digital works are copyrightable.)

This opinion is in line with cases from the Seventh Circuit, including Kelleher v. Eaglerider and Shlahtichman v. 1-800 Contacts.