The suit itself contends that the airline, in giving passenger information to the government in the wake of the Sept. 11, 2001, terrorist attacks, violated laws and its own privacy policy.

Courts have ways of dodging sticky issues they don’t want to deal with - a recent example is the tossing of Michael Newtow’s case against the Pledge of Allegiance on the grounds that he lacks standing to issue such a complaint since his ex-wife has legal custody of his son and it was the school district’s forced recital of the pledge that brought the case.

I will not speak to the undecided issue of whether or not 9/11 and the War on Terror present a sufficient threat to make such policies statements unenforceable in the light of the greater good of fighting terror, but certainly stating that someone must have read a legal agreement for the offeror to be bound is a new stretch for me.

It seems as if it’s saying that all those EULAs (end user license agreements) that come with software and many other things are unenforceable also if you just don’t read them. It doesn’t, of course. For a contract to be valid it must be read and signed off on by both parties. And when you sign off on a software download by clicking “I Accept”, you are accepting the consequences of the fine print, even though we all know that you didn’t read it. But those are cases where the companies are wanting to limit your rights.

This is a case questioning whether a company must live up to its obligations when it is the originator of the fine print and has publicized and used it as a promotion to encourage buyers to select their service. That the airline published their promise on their own web site is certainly proof that the airline signed off on it. That the litigants bought their ticket would seem to be the equivalent of clicking “I Accept”.

“I don’t think it’s relevant whether or not they actually read the privacy policy first,” said Lee Tien, senior staff attorney for the Electronic Frontier Foundation (EFF) in San Francisco. “Think of all the ‘fine print’ we run into every day–warranties and the like. Rather than focus on what the plaintiffs actually read, we should focus on what Northwest said it would do.”

“The rationale the court uses calls into question the assurances of any policy posted on any Web site,” said David Sobel, general counsel for the Electronic Privacy Information Center (EPIC) in Washington, D.C.

Judge Magnuson says “Although Northwest had a privacy policy for information included on the Web site, plaintiffs do not contend that they actually read the privacy policy prior to providing Northwest with their personal information. Thus, plaintiffs’ expectation of privacy was low.”

Low? But apparantly not so low that they wouldn’t file suit over it. It seems to me that the very fact that suit was filed belies Judge Magnuson’s contention. But then he would have the hard work of deciding the case on its merits.

But by taking this backdoor out, he has in effect put into question whether or not the public has any right to expect any company anywhere to live up to the policies that they claim to employ.

This is all lamentable.

When did law become based on “expectations” over the printed legal word? I guess, you need to begin reading all the fine print, otherwise you will be bound by it, but the authors will not. Of course, if you’re too lazy to spend your whole day reading all the fine print, you could do what I will do should I ever find myself in the position of those filing this law suit … when the judge asks you did you read the fine print … Lie!

-Murrel Rhodes