Evan Schuman's StorefrontBacktalk

The statute exempted the old-style credit-card imprint devices (“ca-CHUNK, ca-CHUNK”), because there was no practical way to “truncate” the imprint. Same thing for a handwritten number called in by the merchant for verification. So Congress was trying to protect the consumer at the “point of sale.”

What happens when we try to apply this to E-Commerce? Where is the “point of sale”? What is a “printed receipt”? Does FACTA even apply to E-Commerce at all? And, most importantly, what ruling is most consistent with the language and intent of Congress in passing FACTA? These are not easy questions.

On May 24, the United States Court of Appeals for the Ninth Circuit, which includes California, Oregon and Washington State, decided that the E-mailed receipt was not a “writing” under FACTA. It noted:

“The question we consider under FACTA is the meaning of the words ‘print’ and ‘electronically printed’ in connection with an E-mailed receipt. ‘Print’ refers to many different technologies—from Mesopotamian cuneiform writing on clay cylinders to the Gutenberg press in the 15th Century, Xerography in the early 20th Century and modern digital printing—but all of those technologies involve the making of a tangible impression on paper or other tangible medium.”

The court continued: “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.’ We conclude that under FACTA, a receipt that is transmitted to the consumer via E-mail and then digitally displayed on the consumer’s screen is not an ‘electronically printed’ receipt.”

Applying this rationale, the Court concluded that E-mailing a document containing even a full credit-card number and expiration date does not constitute an “electronically printed” document. That finding has some intellectual appeal. I mean, we all know what it means to “print” something—ink on dead trees, right? But methinks the court is a bit too literal here.

The court goes into a discourse about what it means to “print.” Cuneiform on wet clay? Hieroglyphics on granite? An imprint on wax? Charcoal on papyrus? Is a typewritten record “printed,” or must it be typeset and “pressed” on paper? Does it matter if the final document is created by dot matrix, daisy wheel, thermal imprint, inkjet, laser or otherwise? Are the words “Surrender Dorothy” really “printed”? It is this type of esoterica from which the law is made and unmade.

This is not the first time we have struggled with applying old-world concepts of “writing” and “written” and “printed” to the new Internet-based technology. Is a fax a “writing” for the purposes of a contract? Is an E-mail message? Congress mostly solved this problem when it enacted the E-Sign law, providing that electronic signatures (whatever those are) are deemed legally sufficient for anything that requires something be signed.

So, are electronically mailed receipts “printed”?