Advertising Law Blog

The Ninth Circuit Court of Appeals ruled in Simonoff v. Expedia, Inc., that an email receipt displayed on a computer screen is not an electronically printed receipt under the Fair and Accurate Credit Transactions Act (FACTA). While the decision is limited in its context to finding non-liability under that specific federal statute, the court's rationale may spell trouble for businesses that rely upon electronic mail to satisfy a physical "print" requirement.

The underlying case involved a claim brought by an individual Dimitry Simonoff against Expedia under FACTA. FACTA, however, prohibits a merchant from processing a transaction and then "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."

Expedia emailed Simonoff a receipt containing his credit card expiration date. Simonoff sued claiming that Expedia's email receipt violates FACTA.

In considering whether the transmission of an email receipt constituted "print", the Ninth Circuit analyzed the literal language of the statute. The court found that FACTA "prohibits merchants from printing credit card expiration dates and non-truncated credit card numbers on 'electronically printed' receipts." Accordingly, the meanings of "print" and "electronically printed" were the determining factor. Because neither "print" nor "electronically printed" is defined in the statute, the court looked at the historical meaning of "print":

"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.

Although computer technology has significantly advanced in recent years, we commonly still speak of printing to paper and not to, say, iPad screens. Nobody says, "Turn on your Droid (or iPhone or iPad or Blackberry) and print a map of downtown San Francisco on your screen."

Thus, the court found that an electronic receipt did not constitute "print" because it did not involve a physical imprint onto paper or another tangible medium,

While this may seem to be a narrow interpretation somewhat at odds with today's technology, the court's opinion should be considered in the context of FACTA. Indeed, the court noted that under FACTA, full credit card numbers are allowed to be printed on handwritten or manually imprinted receipts, just not on "electronically printed" receipts.

Nevertheless, businesses that rely on providing electronic receipts in lieu of a physically printed one should carefully consider the potential impact of this and other similar decisions.