May I have your zip code? Jessica Pineda didn’t like that question from a Williams-Sonoma store clerk, and sued for invasion of her privacy rights. But the question was perfectly legal. On October 23, 2009, the California Court of Appeal held in Pineda v Williams-Sonoma it was not unlawful for Williams-Sonoma to ask Pineda for her zip code at the time of purchase, even if that zip code was later used to obtain, view, and distribute her addresses to third parties. The Court’s rationale in Pineda may be useful in determining what other information merchants can lawfully request from consumers and what may later be done with that information without violating the consumer’s privacy rights.
Based on Williams-Sonoma’s alleged conduct, Pineda filed a putative class action alleging violations of California’s Song-Beverly Credit Card Act and her constitutionally recognized right to privacy. The trial court ultimately dismissed both claims and the Court of Appeal affirmed. In holding that Williams-Sonoma had not violated the Song-Beverly Act or Pineda’s privacy rights, the Court of Appeal relied upon two critical findings.
First, the Court found that while the Song-Beverly Act does prohibit merchants from asking credit cardholders for “personal identification information”, zip codes are not protected. Specifically, the Court noted that the Legislature included clear examples of what constituted “personal identification information” under the Act, including a “cardholder’s address and telephone number.” Construing the word of the statute, and relying on an earlier court decision addressing the same issue, the Court explained these examples indicated the Legislature intended to protect “facially individualized information,” and not “group” type information, like zip codes. The Court stated this reasoning was not lessened by the allegation that Williams-Sonoma used Pineda’s zip code to obtain her address using computer search engines. “Simply put,” the Court stated, the Act does not protect zip codes, and whether it should because a zip code can later be used to obtain an address, is an argument “best presented to the Legislature.” The Court’s reasoning here suggests that under the Song-Beverly Act it may be entirely lawful for a merchant to request other types of information that at least facially do not solely relate to the specific customer including a zip code, state of residence, city of residence, or area code.
Second, the Court found Pineda had not stated a claim for invasion of privacy under the California Constitution because she had not satisfied the “serious invasion of privacy” requirement. Pineda’s theory, the Court explained, was that she suffered a serious invasion of privacy when Williams-Sonoma allegedly obtained her zip code and then used it (along with her name and credit card) to obtain, print, and distribute to third parties her address. But nowhere in Pineda’s complaint was there any allegation that her address was not otherwise publicly available or that she had taken any effort to protect such information. “Without such facts, using a legally obtained zip code to acquire, view, print, and distribute or use an address that is otherwise publicly available does not amount to an offensive intrusion of her privacy.” As such, there was no invasion of Pineda’s privacy rights.
Retailers face extreme competitive pressures, and appropriate customer communication can be a significant competitive advantage. They must, however, carefully assess the detailed privacy laws and regulations that vary from one jurisdiction to another in order to end up, as Williams-Sonoma did, on the winning side of a consumer claim.
- James Speyer and Christopher Tarbell