The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Ninth Circuit Determines the Meaning of “Electronically Printed” Under FACTA

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On May 24, 2011, the United States Court of Appeals for the Ninth Circuit determined that an email receipt was not an “electronically printed” receipt as used by the Fair and Accurate Credit Reporting Act (“FACTA”). Under FACTA, entities are prohibiting from printing “more than the last 5 digits of the [credit or debit] card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” 15 U.S.C. Sec. 1681c(g)(1). This restriction only applies to “receipts that are electronically printed, and [does] not apply to transactions in which the sole means of recording a credit card or debit card account number is by handwriting or by an imprint or copy of the card.” Id. Sec. 1681c(g)(2).

In Simonoff v. Expedia, Inc., Simonoff claimed that Expedia violated FACTA by including the expiration date of his credit card on an email receipt for an online transaction. To be a violation of FACTA, an email displayed on a computer screen would have to be considered an “electronically printed” receipt. Upholding the district court’s decision and agreeing with a previous Seventh Circuit decision regarding this issue, the Ninth Circuit determined that the plain meaning of “print” and “electronically printed” does not include email displayed on a computer screen.

Specifically, the Ninth Circuit found that the ordinary meaning of “print” involves a “physical imprint onto paper or another tangible medium.” The court also found that the term “electronically” clarifies the “manner of printing by differentiating receipts printed with electronic devices from receipts printed by hand; it does not change the definition of ‘print.’” Further, the court looked to Congress’s intention in enacting FACTA and determined that “Congress did not use language that would have clearly extended FACTA’s protection to electronically mailed receipts.” The court also looked to other factors of the FACTA statute, such as “the staggered implementation schedule that applies to physical devices that print paper receipts, and the limitation of the statute to receipts produced at the point of the sale or transaction,” to determine the meaning of “electronically printed.” Accordingly, the court determined that “[t]he text of FACTA simply leaves no room to doubt that ‘electronically printed’ receipts include only receipts impressed onto a tangible medium by electronic devices at the point of the sale or transaction, not receipts that are electronically transmitted to an email account or displayed on a computer screen.”

Author: ABA Antitrust

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