By Alexis Kramer
Nov. 24 — Free speech rights of Amazon.com customers will not be infringed by a pretrial discovery order directing Amazon.com to turn over telephone records of customers who unintentionally made in-app purchases, the U.S. District Court for the Western District of Washington ruled Nov. 23 (FTC v. Amazon.com, Inc., W.D. Wash., No. 2:14-cv-01038-JCC, 11/23/15).
Judge John C. Coughenor said that because customers' accidental purchases weren't a form of protected speech, redacting their personally identifiable information before turning over related customer phone call recordings to the Federal Trade Commission wasn't constitutionally necessary.
However, the court agreed with Amazon.com that producing all 111,200 files sought by the FTC—even without the costs of redaction—would be a huge financial burden. It therefore ordered a subset of the requested recordings, in which customers complained about a charge and were denied a refund.
The FTC alleged that Amazon's practice of billing for in-app purchases made by children without the consent of their parents or other account holders violated the FTC Act (19 ECLR 880, 7/16/14). The FTC moved to compel the production of customer service phone call recordings related to customer complaints over in-app purchases. According to the court, 111,200 customer phone calls met the FTC's request.
Amazon opposed the request due to the financial burden it would face if required to redact and produce every recording.
The court rejected Amazon's argument that redaction was necessary under the First Amendment and the Video Privacy Production Act.
Although the Supreme Court held that video games are entitled to First Amendment protection (Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (U.S. 2011)) (16 ECLR 1124, 7/13/11), the unintended in-app purchases didn't constitute actual expression, the court said.
Purchases Not Protected Under VPPA
The VPPA, 18 U.S.C. § 2710, prohibits video tape service providers from disclosing a consumer's personally identifiable information. The statute defines personally identifiable information as “information which identifies a person as having requested or obtained specific video materials or services.”
In In Re Nickelodeon Consumer Privacy Litigation, No. 2:12-cv-07829-SRC-CLW (D.N.J. 2015), a federal district court dismissed claims that Viacom Inc. collected children's personally identifiable information and shared it with Google Inc. The Nickelodeon court said that the disclosed customer information didn't link an identified person to a specific video choice.
Here, the court said that the in-app purchases didn't constitute PII under the VPPA because the Amazon account holders didn't “choose” to make them.
Venable LLP and Perkins Coie represented Amazon.
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