1

Filed 2/4/13

IN THE SUPREME COURT OF CALIFORNIA

APPLE INC., )

)

Petitioner, )

) S199384

v. )

) Ct.App. 2/8 B238097

THE SUPERIOR COURT OF LOS )

ANGELES COUNTY, ) Los Angeles County

) Super. Ct. No. BC463305

Respondent; )

)

DAVID KRESCENT, )

)

Real Party in Interest. )

___________________________________)

The Song-Beverly Credit Card Act of 1971 (Credit Card Act) governs the issuance 

and use of credit cards. (Civ. Code, § 1747 et seq.; all further statutory references are to 

the Civil Code unless otherwise indicated.) One of its provisions, section 1747.08, 

prohibits retailers from ―[r]equest[ing], or requir[ing] as a condition to accepting the 

credit card as payment . . . , the cardholder to write any personal identification 

information upon the credit card transaction form or otherwise.‖ (§ 1747.08, subd. (a) 

(hereafter section 1747.08(a)).) It also prohibits retailers from requesting or requiring the 

cardholder ―to provide personal identification information, which the [retailer] . . . writes, 

causes to be written, or otherwise records upon the credit card transaction form or 

otherwise,‖ and from ―[u]tiliz[ing] . . . a credit card form which contains preprinted 

spaces specifically designed for filling in any personal identification information of the 
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cardholder.‖ (Ibid.) In Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 

(Pineda), we considered whether section 1747.08 is violated when a retailer requests and 

records a customer‘s ZIP code during a credit card transaction. Relying on the statute‘s 

language, legislative history, and purpose, we concluded that a ZIP code constitutes 

―personal identification information‖ within the meaning of the statute and that the Credit 

Card Act forbids a retailer from requesting or recording such information. (Pineda, at 

pp. 527–528.)

Like Pineda, this case involves an asserted violation of section 1747.08. David 

Krescent, the plaintiff in this case, alleged in his complaint that defendant Apple Inc.

requested or required him to provide his address and telephone number as a condition of 

accepting his credit card as payment. However, unlike Pineda, which concerned the 

purchase of a physical product at a traditional ―brick-and-mortar‖ business, this case 

concerns the purchase of an electronic download via the Internet. We must resolve 

whether section 1747.08 prohibits an online retailer from requesting or requiring personal 

identification information from a customer as a condition to accepting a credit card as 

payment for an electronically downloadable product. Upon careful consideration of the 

statute‘s text, structure, and purpose, we hold that section 1747.08 does not apply to 

online purchases in which the product is downloaded electronically.

Our dissenting colleagues warn that today‘s decision ―relegate[s] to the dust heap‖ 

the ―  ̳robust‘ consumer protection . . . at the heart of section 1747.08‖ (dis. opn. by 

Kennard, J., post, at p. 6) and represents a ―major loss for consumers‖ (id. at p. 1) that 

―leaves online retailers free to collect and use the personal identification information of 

credit card users as they wish‖ (dis. opn. by Baxter, J., post, at p. 1). These ominous 

assertions, though eye-catching, do not withstand scrutiny. As we explain, existing state 

and federal laws provide consumers with a degree of protection against unwanted use or 

disclosure of personal identification information. The Legislature may believe these 

measures are inadequate and, if so, may enact additional protections. Or the Legislature 
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may believe that existing laws, together with market forces reflecting consumer 

preferences, are sufficient. It is not our role to opine on this important policy issue. We 

merely hold that section 1747.08 does not govern online purchases of electronically 

downloadable products because this type of transaction does not fit within the statutory 

scheme.

I.

Because this case comes to us following summary denial of a writ of mandate after 

the denial of a demurrer, we assume as true all facts alleged in the operative complaint. 

(Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 996.) Petitioner Apple Inc. 

(Apple), defendant below, operates an Internet Web site and an online iTunes store 

through which it sells digital media such as downloadable audio and video files. In June 

2011, plaintiff below, David Krescent, sued Apple on behalf of himself and a putative 

class of similarly situated individuals for alleged violations of section 1747.08. 

Specifically, Krescent alleged that he purchased media downloads from Apple on various 

occasions and that, as a condition of receiving these downloads, he was required to 

provide his telephone number and address in order to complete his credit card purchase. 

He further alleged that Apple records each customer‘s personal information, is not 

contractually or legally obligated to collect a customer‘s telephone number or address in 

order to complete the credit card transaction, and does not require a customer‘s telephone 

number or address for any special purpose incidental but related to the individual credit 

card transaction, such as shipping or delivery. Although he alleged that ―the credit card 

transaction would be permitted to proceed‖ without any personal identification 

information, Krescent also contended that ―even if the credit card processing company or 

companies required a valid billing address and [credit card identification number], under 

no circumstance would [plaintiff‘s] telephone number be required to complete his 

transaction, that is, under no circumstance does [Apple] need [plaintiff‘s] phone number 

in order to complete a [media] download transaction.‖
4

 In September 2011, Apple filed a demurrer, arguing that the Credit Card Act does 

not apply to online transactions and that deciding otherwise would undermine the 

prevention of identity theft and fraud. After a hearing, the trial court overruled the 

demurrer. The court noted that ―the Act itself is silent on exempting online credit card 

transactions from its purview (and otherwise does not address online credit card 

transactions specifically).‖ While acknowledging that Apple‘s ―assertions with respect to 

preventing fraud have definite appeal (a problem which the Court acknowledges is 

widespread in credit transactions generally, and in online credit card transactions 

specifically),‖ the trial court said it ―is not prepared, at the pleading stage, to read the 

[Credit Card] Act as completely exempting online credit transactions from its reach.‖ 

The court also found, pursuant to Code of Civil Procedure section 166.1, that appellate 

resolution of the issue might materially assist the resolution of the litigation. 

Apple filed a petition for writ of mandate seeking review of the trial court‘s order, 

which the Court of Appeal summarily denied. We granted Apple‘s petition for review

and ordered the trial court to show cause why the relief sought in the petition for writ of 

mandate should not be granted.

II.

We review de novo questions of statutory construction. In doing so, ―  ̳our 

fundamental task is to ―ascertain the intent of the lawmakers so as to effectuate the 

purpose of the statute.‖ ‘ ‖ (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321.) As 

always, we start with the language of the statute, ―giv[ing] the words their usual and 

ordinary meaning [citation], while construing them in light of the statute as a whole and 

the statute‘s purpose [citation].‖ (Pineda, supra, 51 Cal.4th at pp. 529–530.)

A.

We begin with the text of the statute. Section 1747.08(a) provides: ―Except as 

provided in subdivision (c), no person, firm, partnership, association, or corporation that 

accepts credit cards for the transaction of business shall do any of the following: [¶] (1) 
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Request, or require as a condition to accepting the credit card as payment in full or in part 

for goods or services, the cardholder to write any personal identification information 

upon the credit card transaction form or otherwise. [¶] (2) Request, or require as a 

condition to accepting the credit card as payment in full or in part for goods or services, 

the cardholder to provide personal identification information, which the person, firm, 

partnership, association, or corporation accepting the credit card writes, causes to be 

written, or otherwise records upon the credit card transaction form or otherwise. [¶] (3) 

Utilize, in any credit card transaction, a credit card form which contains preprinted spaces 

specifically designated for filling in any personal identification information of the 

cardholder.‖ Section 1747.08, subdivision (b) (hereafter section 1747.08(b)) defines 

―  ̳personal identification information‘ ‖ as ―information concerning the cardholder, other 

than information set forth on the credit card, and including, but not limited to, the 

cardholder‘s address and telephone number.‖

The prohibitions codified in section 1747.08(a) are subject to various exceptions 

set forth in section 1747.08, subdivision (c) (hereafter section 1747.08(c)). Subdivision 

(c) provides that the requirements of subdivision (a) do not apply to ―[c]ash advance 

transactions‖ or ―[i]f the credit card is being used as a deposit to secure payment in the 

event of default . . . or other similar occurrence.‖ (§ 1747.08(c)(1), (2).) Nor do the 

requirements of subdivision (a) apply if the person, firm, partnership, association, or 

corporation accepting the credit card ―is contractually obligated to provide personal 

identification information in order to complete the credit card transaction‖; ―uses the Zip 

Code information solely for prevention of fraud, theft, or identity theft‖ in a ―sales 

transaction at a retail motor fuel dispenser or retail motor fuel payment island automated 

cashier‖; or ―is obligated to collect and record the personal identification information by 

federal or state law or regulation.‖ (§ 1747.08(c)(3)(A)–(C).) Personal identification 

information may also be collected if it ―is required for a special purpose incidental but 

related to the individual credit card transaction, including, but not limited to, information 
6

relating to shipping, delivery, servicing, or installation of the purchased merchandise, or 

for special orders.‖ (§ 1747.08(c)(4).)

Finally, section 1747.08, subdivision (d) (hereafter section 1747.08(d)) provides 

the following general qualification to the statute‘s requirements: ―This section does not 

prohibit any person, firm, partnership, association, or corporation from requiring the 

cardholder, as a condition to accepting the credit card as payment in full or in part for 

goods or services, to provide reasonable forms of positive identification, which may 

include a driver‘s license or a California state identification card, or where one of these is 

not available, another form of photo identification, provided that none of the information 

contained thereon is written or recorded on the credit card transaction form or otherwise. 

If the cardholder pays for the transaction with a credit card number and does not make the 

credit card available upon request to verify the number, the cardholder‘s driver‘s license 

number or identification card number may be recorded on the credit card transaction form 

or otherwise.‖ 

At the outset, we observe that the text of section 1747.08 makes no reference to 

online transactions or the Internet. This is not surprising because former section 1747.8, 

section 1747.08‘s predecessor, was enacted in 1990 (Stats. 1990, ch. 999, § 1, p. 4191),

before the privatization of the Internet (see Frischmann, Privatization and 

Commercialization of the Internet Infrastructure: Rethinking Market Intervention into 

Government and Government Intervention into the Market (2001) 2 Colum. Sci. & Tech. 

L.Rev. 1, 20) and almost a decade before online commercial transactions became 

widespread (see, e.g., McDonough v. Toys “R” Us, Inc. (E.D.Pa. 2009) 638 F.Supp.2d 

461, 468). 

Although section 1747.08 does not explicitly reference online transactions, both 

parties maintain that the Legislature‘s intent is apparent from the plain meaning of the 

statute‘s terms. Krescent contends that the language of section 1747.08(a) ―must be read 

as an all-inclusive prohibition on every businesses [sic] regardless of the form of the 
7

transaction.‖ According to Krescent, in directing the statutory prohibition at any ―person,

firm, partnership, association, or corporation that accepts credit cards for the transaction 

of business‖ (§ 1747.08(a)), the Legislature intended to include all retailers without 

exception. If the Legislature intended to exempt online retailers, he contends, it could 

have done so.

Apple, on the other hand, argues that the first sentence of section 1747.08(a) must 

be construed in light of other language in the statute indicating that the Legislature had in 

mind only in-person business transactions. For example, section 1747.08(a)(1) prohibits 

a retailer from requesting or requiring a ―cardholder to write any personal identification 

information upon the credit card transaction form or otherwise.‖ (Italics added.) Section 

1747.08(a)(2) prohibits a retailer from requesting or requiring the cardholder to provide 

such information, which the retailer ―writes, causes to be written, or otherwise records 

upon the credit card transaction form or otherwise.‖ (Italics added.) And section 

1747.08(a)(3) prohibits the retailer from utilizing ―a credit card form which contains 

preprinted spaces.‖ (Italics added.) Apple says the terms ―write‖ and ―forms‖ imply, by 

their physicality, that section 1747.08 applies only to in-person transactions. Apple

further argues that the definition of ―credit card‖ in section 1747.02 — ―any card, plate, 

coupon book, or other single credit device existing for the purpose of being used from 

time to time upon presentation to obtain money, property, labor, or services on credit‖ —

indicates that the Legislature contemplated only those transactions in which the card is 

physically presented or displayed to the retailer. (§ 1747.02, subd. (a), italics added.) 

We think the text of section 1747.08(a) alone is not decisive on the question 

before us. The statutory language suggests that the Legislature, at the time it enacted 

former section 1747.8, did not contemplate commercial transactions conducted on the 

Internet. But it does not seem awkward or improper to describe the act of typing 

characters into a digital display as ―writing‖ on a computerized ―form.‖ In construing 

statutes that predate their possible applicability to new technology, courts have not relied 
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on wooden construction of their terms. Fidelity to legislative intent does not ―make it 

impossible to apply a legal text to technologies that did not exist when the text was 

created. . . . Drafters of every era know that technological advances will proceed apace 

and that the rules they create will one day apply to all sorts of circumstances they could 

not possibly envision.‖ (Scalia & Garner, Reading Law: The Interpretation of Legal 

Texts (2012) pp. 85–86.)

For example, in O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, the 

Court of Appeal considered whether an online news magazine constitutes a ―periodical 

publication‖ for purposes of California‘s journalism shield law, which was enacted well 

before the advent of ―digital magazines.‖ (Id. at p. 1461.) The court considered the 

argument that ―the shield law only applies to  ̳periodical publications‘ in print, because 

that was a common feature of newspapers and magazines at the time the law was 

enacted.‖ (Id. at p. 1462.) But the court did not regard that meaning as dispositive, 

instead finding the statutory term ambiguous enough to encompass the Web site at issue. 

(Id. at pp. 1463–1466.) The court ultimately found the shield law applicable to the Web 

site through a careful examination of the Legislature‘s purpose in enacting the statute, not 

on the basis of the plain meaning of ―  ̳periodical publication.‘ ‖ (Id. at pp. 1462–1463; 

see id. at p. 1465 [―Given the numerous ambiguities presented by  ̳periodical publication‘ 

in this context, its applicability must ultimately depend on the purpose of the statute‖].)

In Ni v. Slocum (2011) 196 Cal.App.4th 1636, 1649 (Slocum), the Court of Appeal 

considered ―whether the use of electronic signature qualifies as  ̳personally affix[ing]‘ the 

signature‖ on an initiative petition as that phrase is used in the Elections Code. (See Elec. 

Code, § 100 [―Each signer shall at the time of signing the petition or paper personally 

affix his or her signature, printed name, and place of residence . . . .‖].) The county 

argued that a signer must ―physically  ̳attach[]‘ the signature to the petition by inscribing 

it with a writing utensil,‖ whereas the petitioner claimed that the statutory requirement 

can be satisfied by ―tracing one‘s signature and address on the face of a smartphone in 
9

response to online instructions accompanying a copy of the petition.‖ (Slocum, supra, 

196 Cal.App.4th at pp. 1649–1650.) Although the statute was enacted in 1933, long 

before electronic signatures existed, the Court of Appeal found ―no reason to reject either 

of these definitions solely on the basis of the plain language of the statute.‖ (Id. at 

p. 1650; see id. at p. 1652 [―Statutory interpretation must be prepared to accommodate 

technological innovation, if the technology is otherwise consistent with the statutory 

scheme‖].) 

Rather, the court in Slocum ultimately concluded that an electronic signature 

system was ―not entirely consistent with the present statutory scheme for the endorsement 

of initiative petitions because . . . electronic signature software deletes the circulator from 

the signature collection process‖ by allowing ―voters to gain access to petitions from the 

Internet and execute them without the assistance or intervention of a circulator.‖ 

(Slocum, supra, 196 Cal.App.4th at pp. 1652–1653.) The court explained that the 

―Elections Code requires each petition submitted to county election officials to be 

accompanied by the declaration of the circulator, attesting to the genuineness of the 

signatures on the petition,‖ and that ―the Legislature viewed the participation of the 

circulator as a protection against fraud in the collection of signatures.‖ (Id. at p. 1652.) 

Thus, the court concluded that ―the electronic signature system is partially incompatible 

with the current statutory scheme‖ because it ―eliminates from the signature collection 

system one of its primary protections against fraud.‖ (Id. at p. 1653.)

In this case, as in O’Grady and Slocum, the plain meaning of the statute‘s text is 

not decisive. An examination of the statutory scheme as a whole is necessary to 

determine whether it is applicable to a transaction made possible by technology that the 

Legislature did not envision.

B.

We recently considered the history and purpose of the Credit Card Act in Pineda, 

supra, 51 Cal.4th 524. There we said ―[t]he statute‘s overriding purpose was to  ̳protect 
10

the personal privacy of consumers who pay for transactions with credit cards.‘ ‖ (Id. at p. 

534, quoting Assem. Com. on Finance and Ins., Analysis of Assem. Bill No. 2920 (1989–

1990 Reg. Sess.) as amended Mar. 19, 1990, p. 2.) Specifically, the Legislature ―sought 

to address the misuse of personal identification information for, inter alia, marketing 

purposes, and found that there would be no legitimate need to obtain such information 

from credit card customers if it was not necessary to the completion of the credit card 

transaction.‖ (Absher v. AutoZone, Inc. (2008) 164 Cal.App.4th 332, 345, quoted in 

Pineda, at p. 535.) ―To protect consumers, the Legislature sought to prohibit businesses 

from  ̳requiring information that merchants, banks or credit card companies do not 

require or need.‘ ‖ (Pineda, at p. 534, quoting Assem. Com. on Finance and Ins., 

Analysis of Assem. Bill No. 2920 (1989–1990 Reg. Sess.) as amended Mar. 19, 1990, 

p. 2.)

While it is clear that the Legislature enacted the Credit Card Act to protect 

consumer privacy, it is also clear that the Legislature did not intend to achieve privacy 

protection without regard to exposing consumers and retailers to undue risk of fraud. The 

legislative history shows that the Legislature enacted the statute‘s prohibitions only after 

carefully considering and rejecting the possibility that the collection of personal 

identification information by brick-and-mortar retailers could serve a legitimate purpose

such as fraud prevention. In particular, the Senate Judiciary Committee considered the 

standard procedure followed by brick-and-mortar retailers in the 1990s to verify the 

identity of credit card users — which included ―verify[ing] the identification of the 

cardholder by comparing the signature on the credit card transaction form with the 

signature on the back of the card‖ and ―contact[ing] the credit card issuer‘s authorization 

center [to] obtain approval‖ for sales above a specified ―floor limit‖ — and concluded 

that the collection of personal identification information was not a necessary step in that 

procedure. (Sen. Judiciary Com., Analysis of Assem. Bill No. 2920 (1989–1990 Reg. 

Sess.) as amended June 27, 1990, p. 3.) This finding supported the Legislature‘s 
11

judgment that brick-and-mortar retailers in the 1990s had no genuine need to collect 

personal identification information and would instead use such information primarily for 

unsolicited marketing. (See id. at pp. 3–4 [noting that the ―problem‖ the bill was 

designed to address was retailers‘ practice of leading consumers ―to mistakenly believe 

that [personal identification information] is a necessary condition to complete the credit 

card transaction, when, in fact, it is not‖ and ―acquir[ing] this additional personal 

information for their own business purposes — for example, to build mailing or 

telephone lists which they can subsequently use for their own in-house marketing efforts, 

or sell to direct-mail or tele-marketing specialists, or to others‖]; id. at pp. 5–7 

[explaining that retailers had no genuine need for personal identification information to 

address problems such as billing errors, lost credit cards, and product problems].) We 

cannot assume that the Legislature, had it confronted a type of transaction in which the 

standard mechanisms for verifying a cardholder‘s identity were not available, would have 

made the same policy choice as it did with respect to transactions in which it found no 

tension between privacy protection and fraud prevention.

Further, the Legislature in 1991 ―added a provision (former § 1747.8, subd. (d)) 

. . . substantially similar to the subdivision (d) now in section 1747.08, permitting 

businesses to require cardholders to provide identification so long as none of the 

information contained thereon was recorded.‖ (Pineda, supra, 51 Cal.4th at p. 535, citing

Stats. 1991, ch. 1089, § 2, p. 5042.) The adoption of this provision was described as ―a 

clarifying, nonsubstantive change.‖ (State and Consumer Services Agency, Enrolled Bill 

Rep. on Assem. Bill No. 1477 (1991–1992 Reg. Sess.) Sept. 9, 1991, p. 3.) As 

previously noted, section 1747.08(d) makes clear that nothing in the statute prevents 

retailers from requiring customers to provide positive identification — ―which may 

include a driver‘s license or a California state identification card, or where one of these is 

not available, another form of photo identification‖ — as a condition of accepting a credit 

card as payment. In addition, although section 1747.08(d) generally prohibits a retailer 
12

from recording information contained on a customer‘s photo identification card, a retailer 

may record the customer‘s driver‘s license number or similar information when the 

customer does not make the credit card available for verification, presumably so that the 

customer may be identified and located in the event of a problem with the use of the 

credit card. Section 1747.08(d) shows that while the Legislature indeed sought to protect

consumer privacy, it did not intend to do so at the cost of creating an undue risk of credit 

card fraud. Rather, section 1747.08(d) demonstrates the Legislature‘s intent to permit 

retailers to use and even record personal identification information when necessary to 

combat fraud and identity theft — objectives that not only protect retailers but also 

promote consumer privacy.

The safeguards against fraud that are provided in section 1747.08(d) are not 

available to the online retailer selling an electronically downloadable product. Unlike a 

brick-and-mortar retailer, an online retailer cannot visually inspect the credit card, the 

signature on the back of the card, or the customer‘s photo identification. Thus, section 

1747.08(d) — the key antifraud mechanism in the statutory scheme — has no practical 

application to online transactions involving electronically downloadable products. We

cannot conclude that if the Legislature in 1990 had been prescient enough to anticipate

online transactions involving electronically downloadable products, it would have 

intended section 1747.08(a)‘s prohibitions to apply to such transactions despite the 

unavailability of section 1747.08(d)‘s safeguards.

Krescent‘s complaint reinforces our conclusion insofar as it failed to allege that 

Apple does not require any personal identification information to verify the identity of 

the credit card user. His complaint merely alleged that ―the credit card transaction would 

be permitted to proceed without any further information‖ and that Apple ―is not 

contractually obligated to provide a consumer‘s telephone number and/or address in order 

to complete the credit card transaction,‖ thereby rendering inapplicable the exception set 

forth in section 1747.08(c)(3)(A). Even if credit card transactions may proceed without 
13

any personal identification information under the contractual terms that bind retailers and

credit card companies, the fact remains that the Legislature saw fit to include section 

1747.08(d)‘s safeguards against fraud in the statutory scheme. The inclusion of section 

1747.08(d), separate and apart from the exception in section 1747.08(c)(3)(A), reflects 

the Legislature‘s judgment that consumers and retailers have an interest in combating

fraud that is independent of whatever security measures are (or are not) required by 

contracts between retailers and credit card issuers. Consistent with this legislative 

judgment, both parties acknowledged at oral argument that retailers often bear the risk of 

loss from fraudulent credit card charges.

In addition, Krescent suggested in his complaint and expressly conceded at oral 

argument that Apple may need at least a valid billing address, if not a telephone number,

to verify the credit card. However, according to Krescent‘s own allegations, there would 

be no way for Apple to collect this information under the statute. As noted, Krescent 

alleged that Apple is neither contractually nor legally obligated to collect such 

information; hence, the exceptions in section 1747.08(c)(3)(A) and (C) do not apply.

Krescent also alleged that Apple does not require a customer‘s address for a special 

purpose incidental but related to the credit card transaction, such as shipping, because the 

product is electronically downloadable; hence, the exception in section 1747.08(c)(4)

does not apply. Likewise, the exceptions concerning motor fuel retailers, cash advance 

transactions, and transactions in which a credit card is used as a form of security have no 

applicability to this case. (§ 1747.08(c)(1), (2), (3)(B).)

At oral argument, Krescent suggested that Apple might be able to collect a 

customer‘s billing address as a ―reasonable form[] of positive identification‖ under

section 1747.08(d). But section 1747.08(b) includes ―the cardholder‘s address‖ as a type 

of personal identification information retailers are forbidden to collect. Moreover, 

Krescent‘s view cannot be squared with the full text of section 1747.08(d), which says 

retailers may require the cardholder ―to provide reasonable forms of positive 
14

identification, which may include a driver‘s license or California state identification card, 

or where one of these is not available, another form of photo identification, provided that 

none of the information provided thereon is written or recorded on the credit card 

transaction form or otherwise.‖ A billing address is not a ―form of photo identification.‖

(See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 743 [―Under the 

principle of statutory construction known as  ̳ejusdem generis,‘ the general term 

ordinarily is understood as being  ̳ ―restricted to those things that are similar to those 

which are enumerated specifically‖ ‘ ‖].) And Krescent‘s own complaint alleged that 

Apple ―records each consumer‘s personal information, including, but not limited to a 

telephone number and address, in line with each credit card transaction, and keeps 

records of such personal information.‖ In short, section 1747.08(d) does not permit 

Apple to collect a billing address in the course of an online transaction.

In his brief (but not in his complaint), Krescent argued that requiring a customer to 

provide his or her name, credit card number, card expiration date, and credit card 

identification number suffices to prevent fraud. But it is clear that the Legislature has 

disagreed. A customer‘s name, credit card number, expiration date, and security code are 

all apparent to a ―brick-and-mortar‖ retailer on the credit card itself when the card is 

presented during an in-person transaction. Yet the Legislature expressly authorized 

retailers to request additional information — namely, a driver‘s license, state 

identification card, or another form of photo identification — in order to combat fraud. 

(§ 1747.08(d).) The Legislature has thus decided that the information on the credit card 

is not necessarily sufficient by itself to protect consumers and retailers against fraud.

Our dissenting colleagues offer various arguments against the conclusion that the 

statute, if applied to the online transaction in this case, would prohibit Apple from 

collecting information necessary to combat fraud. Justice Kennard cites section 

1747.08(c)(3)(A), which allows retailers to collect personal identification information 

that they are ―contractually obligated to provide . . . in order to complete the credit card 
15

transaction,‖ as one ―layer of protection against fraud.‖ (Dis. opn. by Kennard, J., post, 

at p. 7.) But Krescent‘s complaint stated that Apple is not contractually obligated to 

collect any such information, and we must accept this allegation as true on demurrer. 

(See ante, at p. 13.) Justice Kennard also notes that the second sentence of section 

1747.08(d) allows retailers ―to record the number appearing on the buyer‘s driver‘s 

license or similar identification.‖ (Dis. opn. by Kennard, J., post, at p. 7.) But the second 

sentence of section 1747.08(d) allows a retailer to record such information when a buyer 

―pays for the transaction with a credit card number and does not make the credit card 

available upon request,‖ presumably so that the buyer may be tracked down if the use of 

the credit card number turns out to be improper. This provision contemplates that the 

retailer can verify that the driver‘s license or identification card belongs to the buyer; 

indeed, section 1747.08(d) makes clear that a driver‘s license or identification card has 

significance in this context as a ―form of photo identification.‖ In an online transaction, 

even if the retailer were to collect a driver‘s license number, the retailer has no way to 

verify that the number corresponds to the person using the credit card number.

In his dissent, Justice Baxter asserts that we indulge an unwarranted ―factual 

assumption — that the personal identification information defendant allegedly demanded 

and collected here, i.e., cardholder addresses and telephone numbers, are  ̳necessary to 

combat fraud and identity theft‘ in online credit card transactions.‖ (Dis. opn. by Baxter, 

J., post, at pp. 7–8.) In fact, we do nothing of the sort. We express no view as to what 

type of information — whether an address, telephone number, or something else — is 

essential to verify a cardholder‘s identity. We hold only that the statutory scheme and 

legislative history make clear the Legislature‘s concern that there be some mechanism by 

which retailers can verify that a person using a credit card is authorized to do so. No 

such mechanism would exist in the context of online purchases of electronically 

downloadable products if the statute were read to apply to such transactions. Because the 

statutory scheme provides no means for online retailers selling electronically 
16

downloadable products to protect against credit card fraud, we conclude that the 

Legislature could not have intended section 1747.08 to apply to this type of transaction.

We have no occasion here to decide whether section 1747.08 applies to online 

transactions that do not involve electronically downloadable products or to any other 

transactions that do not involve in-person, face-to-face interaction between the customer 

and retailer. Our dissenting colleagues contend that section 1747.08 must apply to online 

transactions because the Legislature intended it to apply to ―other card-not-present 

transactions‖ such as mail order and telephone order (MOTO) transactions. (Dis. opn. by 

Baxter, J., post, at pp. 9–10; see dis. opn. by Kennard, J., post, at pp. 4–6.) We express 

no view on whether the statute governs mail order or telephone order transactions, as that 

issue is not presented and has not been briefed in this case. In any event, even if the 

statute does apply to MOTO transactions, we do not think such transactions, which often 

involve ―shipping [or] delivery . . . of the purchased merchandise‖ (§ 1747.08(c)(4)), are 

readily likened to online purchases of electronically downloadable products with respect 

to possible means of preventing or detecting fraud.

III.

Krescent contends that the text and legislative history of a 2011 amendment to the 

Credit Card Act show that section 1747.08 applies to online transactions. As explained 

below, we disagree.

In 2011, the Legislature amended the Credit Card Act to add section 

1747.08(c)(3)(B), which provides that the prohibitions of section 1747.08(a) do not apply 

if ―[t]he person, firm, partnership, association, or corporation accepting the credit card in 

a sales transaction at a retail motor fuel dispenser or retail motor fuel payment island 

automated cashier uses the Zip Code information solely for prevention of fraud, theft, or 

identity theft.‖ This amendment applies to ―pay-at-the-pump‖ transactions in which no 

employee or other seller of the agent is present. (See § 1747.02, subd. (n) [defining 

―  ̳retail motor fuel dispenser‘ ‖ as ―a device that dispenses fuel . . . , that processes the 
17

sale of fuel through a remote electronic payment system, and that is in a location where 

an employee or other agent of the seller is not present‖]; § 1747.02, subd. (o) [defining 

―  ̳retail motor fuel payment island automated cashier‘ ‖ in similar terms].) Krescent 

argues that because the 2011 amendment creates a narrow exception for a certain type of 

remote transaction, it would have been unnecessary surplusage if the statute was never 

intended to apply to remote transactions in the first place. In his view, the 2011 

amendment confirms that all retailers, including retailers conducting business remotely, 

are governed by the statute. 

The logic of Krescent‘s argument holds only if one assumes that a remote 

transaction conducted at a gas station stands on equal footing with an online transaction, 

and that by addressing the former in 2011, the Legislature necessarily signaled the 

statute‘s applicability to the latter. But there are good reasons to doubt this assumption. 

As Apple points out in its brief, ―the customer engaging in a pay-at-the-pump transaction 

has physical possession of the card, which must be swiped,‖ and ―is capable of being 

seen, either because an employee is at the gas station, or because there is video 

surveillance of the pump.‖ Thus, pay-at-the-pump transactions arguably present less risk 

of fraud than online transactions because a customer engaged in an online transaction 

need not possess a physical card and can complete the transaction in the privacy of his or 

her own home. It seems counterintuitive to posit that the Legislature created a fraud 

prevention exemption only for pay-at-the-pump retailers while leaving online retailers 

unprotected, when online retailers — a multibillion-dollar industry by the year 2011 —

have at least as much if not more need for an exemption to protect themselves and 

consumers from fraud.
18

The more logical inference is that the Legislature did not address pay-at-the-pump 

transactions in 2011 against the backdrop of the statute‘s applicability to all remote 

transactions, including online transactions, but rather that the Legislature addressed payat-the-pump transactions against the backdrop of the statute‘s applicability to in-person 

transactions at ordinary brick-and-mortar retailers, the paradigmatic type of transaction 

addressed by the statute‘s text. Compared to ordinary brick-and-mortar retailers, gas 

stations with payment island automated cashiers may indeed have heightened fraud 

concerns, and it would make sense for the Legislature to grant them more leeway to 

record personal identifying information. Indeed, the 2011 amendment supports the view 

that the Legislature‘s policy behind the statute has been, and continues to be, to protect 

consumer privacy without putting retailers in the position of having to accept credit card 

payments when they are unable to confirm that the person using the card is authorized to 

do so.

We acknowledge that the legislative history of the 2011 amendment contains some 

indications that appear to support Krescent‘s position. The gas station exemption became 

law with the passage of Assembly Bill No. 1219 (2011–2012 Reg. Sess.). One version of

the bill proposed to ―amend the Song-Beverly Credit Card Act in a manner that would 

restrict its application to instances in which a card is  ̳physically presented‘ to a retailer, 

apparently with the intent of allowing retailers to collect personal information for fraud 

prevention purposes where the card is not physically presented, as in an on-line or other 

electronic transaction.‖ (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219 

(2011–2012 Reg. Sess.) as amended May 4, 2011, p. 1, italics omitted.) In reviewing this 

version, the Assembly Committee on Judiciary concluded it ―sweeps too broadly in 

effectively removing on-line and telephonic transactions from the scope of the existing 

law‘s protection.‖ (Ibid., italics omitted.) Because ―this was not the bill‘s intent‖

according to its sponsor, the committee said it ―strongly recommends that this language 

come out of the bill.‖ (Id. at p. 5, underlining omitted.) Consistent with that 
19

recommendation, Assembly Bill No. 1219 (2011–2012 Reg. Sess.) was enacted without 

the restrictive language. (§ 1747.08, as amended by Stats. 2011, ch. 690; see also Sen. 

Judiciary Com., Analysis of Assem. Bill No. 1219 (2010-2011 Reg. Sess.) as amended 

June 22, 2011, p. 2.) As passed, the bill provided a specific exemption for automated 

cashiers at gas stations.

For several reasons, however, we do not find this legislative history persuasive on 

the meaning of section 1747.08 as enacted in 1990. First, ―[t]he declaration of a later 

Legislature is of little weight in determining the relevant intent of the Legislature that 

enacted the law.‖ (Peralta Community College Dist. v. Fair Employment & Housing 

Com. (1990) 52 Cal.3d 50, 52). This is especially true where, as here, ―a gulf of decades 

separates the two [legislative] bodies.‖ (Western Security Bank v. Superior Court (1997) 

15 Cal.4th 232, 244.) We thus give little weight to the views of the Legislature of 2011 

as to what the Legislature of 1990 intended.

Second, ―[u]npassed bills, as evidences of legislative intent, have little value.‖

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1396). 

Although plaintiff contends that the never-enacted provisions were premised on the 

Legislature‘s understanding that section 1747.08 applies to online transactions, the 

Legislature‘s decision not to enact those provisions plausibly supports the opposite 

inference: the Legislature may have concluded that it was unnecessary to remove online 

transactions from the statute‘s coverage because such transactions were never covered by 

the statute in the first place. 

Third, the legislative history on whether the statute applies to online transactions is 

conflicting. For example, when the 2011 amendment was first proposed, a federal district 

court had already ruled in Saulic v. Symantec Corp. (C.D.Cal. 2009) 596 F.Supp.2d 1323

that section 1747.08 does not apply to online transactions, and ―the Legislature is deemed 

to be aware of existing laws and judicial decisions in effect at the time legislation is 

enacted and to have enacted and amended statutes  ̳ ―in the light of such decisions as have 
20

a direct bearing upon them.‖ ‘ ‖ (People v. Overstreet (1986) 42 Cal.3d 891, 897.) In 

addition, an Assembly analysis of proposed Senate amendments noted that ―this bill 

simply creates an express exemption in current law from the prohibition on collecting zip 

code information in a retail credit card transaction at a motor fuel dispenser so long as the 

zip code information is used to prevent fraud, theft or identity theft,‖ an exemption that 

―the courts may determine in current litigation . . . always existed.‖ (Assem. Floor 

analysis, Assem. Bill No. 1219 (2011–2012 Reg. Sess.) Sept. 8, 2011, p. 3, italics added.) 

Similarly, the sponsor of the unenacted proposal to remove online and telephonic 

transactions from the statute‘s coverage indicated that the proposal was ―intended to 

clarify existing law.‖ (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219 

(2011–2012 Reg. Sess.) as amended May 4, 2011, p. 2.)

Fourth, in contrast to the conflicting evidence and legally dubious inferences from 

the 2011 legislative history as to whether the 1990 statute applies to online transactions, 

what is clear from the legislative history is that the 2011 amendment was enacted to 

address a very specific problem. Our 2011 holding in Pineda, supra, 51 Cal.4th 524, that 

a ZIP code constitutes ―personal identification information‖ within the meaning of 

section 1747.08(b) applied retroactively to uses of the ZIP code prior to our ruling. The 

California Retailers Association, the sponsor of Assembly Bill No. 1219, ―claim[ed] that 

about 150 lawsuits [had] been filed against retailers in the wake of the Supreme Court 

decision, including against gas stations that collect zip codes for fraud prevention 

purposes.‖ (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1219 (2011–2012

Reg. Sess.) as amended May 4, 2011, p. 1, italics omitted.) The Western States 

Petroleum Association argued to the Legislature that ―[w]ithout specific language 

expressly exempting fraud prevention, . . . its member companies  ̳may face years of 

costly litigation.‘ ‖ (Id. at p. 8; see also Assem. Com. on Banking and Finance, Analysis 
21

of Assem. Bill No. 1219 (2010–2011 Reg. Sess.) as amended Apr. 25, 2011, p. 2 [―The 

need for this bill arises from . . . Pineda v. Williams-Sonoma Stores, Inc. . . .‖].) In 

response, the Legislature created an ―express exemption from the prohibition against the 

collection and retention of zip code information when the zip code is used solely for 

prevention of fraud, theft, or identity theft in a sales transaction at a retail motor fuel 

dispenser or retail motor fuel payment island automated cashier.‖ (Assem. Floor 

analysis, Assem. Bill No. 1219 (2011–2012 Reg. Sess.) Sept. 8, 2011, p. 1.)

Thus, the problem the Legislature sought to address in 2011 was a narrow one: 

how to deal with lawsuits filed against traditional brick-and-mortar retailers, particularly

gas stations, that had been collecting ZIP codes for years under the mistaken belief that 

they were not prohibited from doing so under section 1747.08. Given the Legislature‘s 

specific focus, it is not surprising that the Assembly Committee on Judiciary 

recommended that the bill be written narrowly, without the use of broad language 

unnecessary to address the particular problem faced by gas stations that use automated 

cashiers. In sum, we cannot draw any firm conclusion concerning the applicability of 

section 1747.08 to online transactions from the legislative history of the 2011 gas station 

exemption for the simple reason that the Legislature in 2011 was not presented with that 

issue.

IV.

Finally, the California Online Privacy Protection Act of 2003 (COPPA) shows that 

the Legislature knows how to make clear that it is regulating online privacy and that it 

does so by carefully balancing concerns unique to online commerce. COPPA provides 

that ―[a]n operator of a commercial Web site or online service that collects personally 

identifiable information through the Internet about individual consumers residing in 

California who use or visit its commercial Web site or online service shall conspicuously 

post its privacy policy on its Web site . . . .‖ (Bus. & Prof. Code, § 22575, subd. (a).) 

The privacy policy must: ―(1) Identify the categories of personally identifiable 
22

information that the operator collects through the Web site or online service about 

individual consumers who use or visit its commercial Web site or online service and the 

categories of third-party persons or entities with whom the operator may share that 

personally identifiable information. [¶] (2) If the operator maintains a process for an 

individual consumer who uses or visits its commercial Web site or online service to 

review and request changes to any of his or her personally identifiable information that is 

collected through the Web site or online service, provide a description of that process. 

[¶] (3) Describe the process by which the operator notifies consumers who use or visit its 

commercial Web site or online service of material changes to the operator‘s privacy 

policy for that Web site or online service. [¶] (4) Identify its effective date.‖ (Bus. & 

Prof. Code, § 22575, subd. (b).)

Although it is theoretically possible to construe COPPA as imposing requirements 

on online transactions that go above and beyond the requirements of section 1747.08, we 

find no evidence of such a legislative intent. Instead, there is evidence to the contrary. 

The Senate Rules Committee‘s third reading analysis of COPPA indicated that this

legislation was necessary because ―[e]xisting law does not directly regulate the privacy 

practices of online business entities.‖ (Sen. Rules Com., 3d reading analysis of Assem. 

Bill No. 68 (2003-2004 Reg. Sess.) as amended Sept. 3, 2003, p. 2.) The bill‘s author 

explained that because ―many consumers refuse to do business online because they have 

little protection against abuse,‖ online retailers should be required at least to disclose in 

their online privacy policies what personal information may be collected and how it is 

used. (Assem. Com. on Business and Professions, Analysis of Assem. Bill No. 68 

(2003–2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2; see also Assem. Com. on 

Judiciary, Analysis of Assem. Bill No. 68 (2003–2004 Reg. Sess.) as amended Apr. 2, 

2003, p. 3 [―Any policy will do. The bill simply requires that an operator have a policy 

and then follow it‖].) According to the bill‘s author, this disclosure regime would 

―provide[] meaningful privacy protection[] that will help foster the continued growth of 
23

the Internet economy.‖ (Assem. Com. on Business and Professions, Analysis of Assem. 

Bill No. 68 (2003–2004 Reg. Sess.) as amended Apr. 28, 2003, p. 2.) 

The enactment of COPPA suggests that when the Legislature intends to address 

online transactions, it does so unambiguously. In addition, the fact that COPPA enacts

merely a disclosure regime suggests that the Legislature in 2003 sought to proceed 

cautiously in regulating online commerce or, at least for the time being, to strike a 

different policy balance than the Credit Card Act did in 1990 for the collection of 

personally identifiable information.

COPPA also refutes our dissenting colleagues‘ assertion that today‘s decision will 

leave online retailers ―free to require personal identification information as a condition of 

credit card acceptance and to use such information for whatever purposes they wish.‖ 

(Dis. opn. by Baxter, J., post, at p. 12; see dis. opn. by Kennard, J., post, at pp. 1, 6.) As 

noted, COPPA requires online retailers to ―conspicuously post‖ their privacy policies, to 

disclose ―the categories of personally identifiable information‖ they collect, and to 

identify ―the categories of third-party persons or entities with whom [they] may share that 

personally identifiable information.‖ (Bus. & Prof. Code, § 22575, subds. (a), (b).) If a 

consumer is not satisfied with the policy of a particular retailer, he or she may decline to 

purchase a product from that retailer. The Legislature could have reasonably believed 

that its disclosure regime creates significant incentives, in light of consumer preferences,

for online retailers to limit their collection and use of personally identifiable information.

Federal law also provides some degree of protection against the use of personal 

identification information for unwanted commercial solicitation. The Telephone 

Consumer Protection Act of 1991 (TCPA; Pub.L. No. 102–243 (Dec. 20, 1991) 105 Stat. 

2394) was enacted ―to protect the privacy interests of residential telephone subscribers by 

placing restrictions on unsolicited, automated telephone calls to the home and to facilitate 

interstate commerce by restricting certain uses of facsimile . . . machines and automatic 

dialers.‖ (Sen.Rep. No. 102-178, 1st Sess., p. 1, reprinted in 1991 U.S. Code Cong. & 
24

Admin. News, p. 1968; see 47 U.S.C. § 227.) ―[T]he TCPA instructs the [Federal 

Communications Commission] to issue regulations  ̳concerning the need to protect 

residential telephone subscribers‘ privacy rights to avoid receiving telephone solicitations 

to which they object.‖ (Charvat v. NMP, LLC (6th Cir. 2011) 656 F.3d 440, quoting 47 

U.S.C. § 227(c)(1).) ―In 2003, two federal agencies — the Federal Trade Commission 

(FTC) and the Federal Communications Commission (FCC) — promulgated rules that 

together created the national do-not-call registry. [Citations.] The national do-not-call 

registry is a list containing the personal telephone numbers of telephone subscribers who 

have voluntarily indicated that they do not wish to receive unsolicited calls from 

commercial telemarketers. Commercial telemarketers are generally prohibited from 

calling phone numbers that have been placed on the do-not-call registry, and they must 

pay an annual fee to access the numbers on the registry so that they can delete those 

numbers from their telephone solicitation lists.‖ (Mainstream Mktg. Servs. v. FTC (10th 

Cir. 2004) 358 F.3d 1228, 1233–1234, fns. omitted.) Thus, federal legislation limits the 

commercial use of customer telephone numbers.

There can be no doubt that retail commerce has changed dramatically since section 

1747.08 was enacted and even since COPPA and the federal TCPA were enacted. In 

1990, the idea of computerized transactions involving the sale and purchase of virtual 

products was beyond any legislator‘s imagination. Such technology was not even a 

twinkle in Steve Jobs‘s eye; at the time, Jobs had just begun to experiment with the 

concept of ―interpersonal computing.‖ (New Models of NeXT Computer Lauded; Users, 

Analysts Praise Changes in Hardware, Software, Rocky Mountain News (Sept. 23, 1990) 

p. B8; see Isaacson, Steve Jobs (2011) pp. 211–237, 293–294 [discussing Jobs‘s

attempted innovations in personal computing during the late 1980s and early 1990s].) 

Today, retail ―e-commerce‖ sales in the United States approach $200 billion a year (see 

U.S. Census Bur., E-Stats (May 12, 2012) pp. 3–4 <http://www.census.gov/econ/estats/

2010/2010reportfinal.pdf> [as of Feb. 4, 2013]), and it has been estimated that iTunes 
25

alone will generate as much as $13 billion in revenue for Apple in 2013 through the sale 

of apps, music, movies, and e-books (see Gobry, Apple Will Generate $13 Billion in 

iTunes Revenue in 2013, Says Analyst, Business Insider, July 5, 2011 

<http://www.businessinsider.com/apple-itunes-revenue-2013-2011-7> [as of Feb. 4, 

2013]). Although ―[s]tatutory interpretation must be prepared to accommodate 

technological innovation,‖ this is only possible ―if the technology is otherwise consistent 

with the statutory scheme.‖ (Slocum, supra, 196 Cal.App.4th at p. 1652.) Having 

thoroughly examined section 1747.08‘s text, purpose, and history, we are unable to find 

the clarity of legislative intent or consistency with the statutory scheme necessary to 

conclude that the Legislature in 1990 intended to bring the enormous yet unforeseen

advent of online commerce involving electronically downloadable products — and the 

novel challenges for privacy protection and fraud prevention that such commerce 

presents — within the coverage of the Credit Card Act.

In light of our holding today, the Legislature may wish to revisit the issue of 

consumer privacy and fraud prevention in online credit card transactions, just as it 

revisited the use of ZIP codes in the wake of our 2011 decision in Pineda. We cast no 

doubt on Krescent‘s claim that protecting consumer privacy in online transactions is an 

important policy goal, nor do we suggest that combating fraud is as important or 

more important than protecting privacy. We express no view on this significant issue 

of public policy. Our role is to determine what the Legislature intended by the statute 

it enacted. Here the statutory scheme, considered as a whole, reveals that the 

Legislature intended to safeguard consumer privacy while also protecting retailers and 

consumers against fraud. This accommodation of interests struck by the Legislature 

would not be achieved if section 1747.08 were read to apply to online transactions

involving electronically downloadable products. Because we cannot make a square peg 
26

fit a round hole, we must conclude that online transactions involving electronically 

downloadable products fall outside the coverage of the statute.

CONCLUSION

For the foregoing reasons, the Court of Appeal‘s judgment summarily denying the 

petition for writ of mandate or prohibition is reversed, and the matter is remanded to that 

court with directions to issue a writ consistent with this opinion.

LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.
1

DISSENTING OPINION BY KENNARD, J.

To protect consumer privacy, California statutory law prohibits retail sellers from 

recording the personal identification information, such as home addresses and telephone 

numbers, of their credit-card-using customers. (Civ. Code,1 § 1747.08, subd. (a).) The 

statute does not exempt online sales of downloadable products from this prohibition, and 

on its face the statute applies to sales conducted over the Internet just as it does to sales 

conducted face-to-face or by mail or telephone. Yet the majority holds that online sales 

of downloadable products are not covered by the statute, thus leaving Internet retailers 

free to demand personal identification information from their credit-card-using customers 

and to resell that information to others. The majority‘s decision is a major win for these 

sellers, but a major loss for consumers, who in their online activities already face an everincreasing encroachment upon their privacy.

Unlike the majority, I conclude that the statute means just what it says and 

contains no exemption, express or implied, for online sales of downloadable products. 

The majority‘s expressed concern that this plain-meaning construction of the statute 

leaves online sellers with no way to detect and prevent fraudulent purchases is 

unjustified, as I explain.

 

1 All undesignated statutory references are to the Civil Code.
2

I

David Krescent filed a complaint alleging that on four occasions in 2010, he 

bought downloadable products from Apple, Inc. (Apple); that he used a credit card to pay 

for those products; and that Apple, as a condition of completing those purchases and in 

violation of section 1747.08, required him to provide his home address and telephone 

number, which he did. Krescent seeks statutory penalties for those alleged violations. 

He also seeks certification of a class comprising all individuals who within the year 

preceding the filing of the complaint purchased downloadable products from Apple, paid 

by credit card, and were required by Apple to give home addresses and telephone 

numbers.

Section 1747.08‘s predecessor was enacted in 1990 as former section 1747.8. 

(Stats. 1990, ch. 999, § 1, p. 4191.) The Legislature has since then amended the statute 

several times and renumbered it in 2004. (Stats. 2004, ch. 183, § 29, p. 981.) The statute 

prohibits sellers from recording their credit-card-using customers‘ ―personal 

identification information‖ (§ 1747.08, subd. (a)), such as the cardholder‘s address and 

telephone number (§ 1747.08, subd. (b)). It applies to any ―person, firm, partnership, 

association, or corporation that accepts credit cards for the transaction of business.‖ 

(§ 1747.08, subd. (a).)

Apple filed a demurrer. A demurrer is, in essence, a request that the case be 

dismissed because the facts alleged in the complaint are insufficient as a matter of law to 

justify any relief. In this situation, ―we review the allegations of the operative complaint 

for facts sufficient to state a claim for relief.‖ (C.A. v. William S. Hart Union High 

School Dist. (2012) 53 Cal.4th 861, 866.) In support of its demurrer, Apple argued that 

section 1747.08 does not apply to Internet transactions, because the Internet as we know 

it today did not exist in 1990 when the Legislature enacted the statutory provisions at 

issue. Apple contended that the statute contemplates a transaction involving the physical

presentation of a credit card (or something similar) and the recording of data from that 
3

card onto a paper credit card transaction form, neither of which is possible in a 

transaction done electronically over the Internet.

In overruling Apple‘s demurrer, the trial court said it was ―not prepared, at the 

pleading stage, to read [section 1747.08] as completely exempting online credit 

transactions from its reach,‖ thus indicating that any ruling in Apple‘s favor would 

require a more developed factual record than what had been presented at that early stage 

of the proceedings. Apple petitioned the Court of Appeal for a writ of mandate, which 

the court summarily denied. This court then granted Apple‘s petition for review.

II

Section 1747.08‘s broad language (see p. 2, ante) applies to any ―person, firm, 

partnership, association, or corporation that accepts credit cards for the transaction of 

business.‖ (§ 1747.08, subd. (a).) Apple comes within that definition. The Legislature 

made some express exceptions in the statute (id., subd. (c)), but none pertains to a 

categorical exemption for online transactions. Nevertheless, the majority here exempts 

online sellers of downloadable products from complying with the statutory prohibition 

against a seller‘s recording of the personal identification information of its credit-cardusing customers. The majority reasons that the Legislature could not have intended 

section 1747.08 to apply to such online sellers, and it repeatedly emphasizes the novelty 

of Internet-based commerce. (See, e.g., maj. opn., ante, p. 11 [―We cannot assume that 

the Legislature, had it confronted a type of transaction in which the standard mechanisms 

for verifying a cardholder‘s identity were not available, would have made the same policy 

choice as it did with respect to transactions in which it found no tension between privacy 

protection and fraud prevention.‖]; id., p. 12 [―We cannot conclude that if the Legislature 

in 1990 had been prescient enough to anticipate online transactions involving 

electronically downloadable products, it would have intended section 1747.08(a)‘s 

prohibitions to apply to such transactions despite the unavailability of section 

1747.08(d)‘s safeguards.‖]; id., p. 25 [―[W]e are unable . . . to conclude that the 
4

Legislature in 1990 intended to bring the enormous yet unforeseen advent of online 

commerce involving electronically downloadable products — and the novel challenges 

for privacy protection and fraud prevention that such commerce presents — within the 

coverage of the Credit Card Act.‖].)

No significant difference exists between a purchase conducted over the Internet 

and one conducted through the mail or by telephone. In both cases, the credit card is not 

physically presented to the seller, who nevertheless has limited ways of confirming the 

buyer‘s identity. Also, in some mail and telephone sales (as with online sales of 

downloadable products) the seller does not need the purchaser‘s mailing address for 

shipping purposes. Some examples: when the buyer has a gift sent to a third party‘s 

address, or pays for news, entertainment, or other information to be conveyed by 

telephone. (See maj. opn., ante, p. 16.) Although modern-day Internet commerce did not 

exist in 1990, when the statutory provisions at issue were enacted, by that time mail order 

and telephone order transactions (hereafter also referred to as MOTO transactions) were 

well established. (See, e.g., Winn, Clash of the Titans: Regulating the Competition 

between Established and Emerging Electronic Payment Systems (1999) 14 Berkeley 

Tech. L.J. 675, 688 (hereafter Winn) [―decades of MOTO transactions‖ preceded the 

advent of Internet commerce].)

Jane K. Winn (the Charles I. Stone Professor at the University of Washington 

School of Law) has written numerous academic publications on electronic commerce and 

is considered a leading international authority in that field. In the article cited above, 

Professor Winn observes that merchants who accepted credit cards as payment in mail 

order and telephone order transactions developed ―sophisticated security systems . . . to 

keep fraud and error losses to a minimum‖ (Winn, supra, at p. 688), thus accommodating 

the desire of these merchants to conduct business remotely. After the Internet‘s 

emergence, the same antifraud practices that had applied to mail order and telephone 
5

order transactions were ―transferred [to the Internet] to manage risks with Internet-based 

commerce.‖ (Ibid.)

The Law Revision Commission‘s comment on Evidence Code section 450 allows 

reliance on academic publications like Professor Winn‘s article: ―Under the Evidence 

Code, as under existing law, courts may consider whatever materials are appropriate in 

construing statutes . . . . That a court may consider legislative history, discussions by 

learned writers in treatises and law reviews, materials that contain controversial 

economic and social facts or findings or that indicate contemporary opinion, and similar 

materials is inherent in the requirement that it take judicial notice of the law. In many 

cases, the meaning and validity of statutes . . . can be determined only with the help of 

such extrinsic aids. . . .‖ (Italics added.)2

Although Professor Winn‘s factual assertions are not part of the meager record 

before us, further development of the factual record could establish those assertions 

beyond question. By holding in Apple‘s favor and ending the litigation, the majority 

precludes such further development of the record.

Succinctly put, the similarity between online transactions and mail order or 

telephone order transactions belies the majority‘s insistence that its holding exempting 

online sellers such as Apple from compliance with section 1747.08 is necessary to protect 

these sellers from consumer fraud.

 

2 I note the majority‘s reliance on assertions of fact in various publications. (See 

maj. opn., ante, p. 6, citing Frischmann, Privatization and Commercialization of the 

Internet Infrastructure: Rethinking Market Intervention into Government and 

Government Intervention into the Market (2001) 2 Colum. Sci. & Tech. L.Rev. 1, 20; 

maj. opn., ante, pp. 24-25, citing New Models of NeXT Computer Lauded; Users, 

Analysts Praise Changes in Hardware, Software, Rocky Mountain News (Sept. 23, 1990) 

p. B8, Isaacson, Steve Jobs (2011) pp. 211–237, 293–294, and Gobry, Apple Will 

Generate $13 Billion in iTunes Revenue in 2013, Says Analyst, Business Insider, July 5, 

2011 <http://www.businessinsider.com/apple-itunes-revenue-2013-2011-7> [as of 

February 4, 2013].)
6

The majority‘s focus on fraud protection for sellers is at odds with this court‘s 

recent statement in Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 that

section 1747.08‘s ―overriding purpose was to  ̳protect the personal privacy of consumers 

who pay for transactions with credit cards.‘ [Citation.]‖ (Pineda, supra, at p. 534, italics 

added.) That ―robust‖ consumer protection (id. at p. 536), at the heart of section 1747.08, 

is now largely relegated to the dust heap. As a result of the majority‘s decision, online 

sellers of downloadable products can collect unlimited personal information concerning 

their credit-card-using customers and sell that information to, or share it with, other 

companies, which, for marketing purposes, can then construct detailed consumer profiles. 

The majority concedes that ―[t]he Legislature may believe [existing privacy protections] 

are inadequate and, if so, may enact additional protections‖ (maj. opn., ante, p. 2), but the 

majority overlooks the fact that the Legislature already did enact additional protections. 

It enacted section 1747.08. The majority eviscerates those protections by rejecting the 

plain meaning of the statute. The majority‘s policy-driven construction of the statute 

contradicts its claim that ―[i]t is not our role to opine on this important policy issue‖ (maj. 

opn., ante, p. 3) and ―we express no view on this significant issue of public policy‖ (id., 

p. 25).

Moreover, application of section 1747.08 to sellers of downloadable products 

would not prevent these sellers from taking protective measures against fraud. Because 

of the remote nature of the Internet transaction, the buyer cannot physically present a 

credit card to the seller. This is why in that situation the seller is expressly permitted 

under the second sentence of section 1747.08‘s subdivision (d), added in 1995, to record 

the number appearing on the buyer‘s driver‘s license or similar identification.3 And a 

different provision of the same statute allows online sellers of downloadable products to 

 

3 This statutory provision indicates that, contrary to the majority‘s assertion, section 

1747.08 was intended to apply to remote transactions, not just face-to-face transactions.
7

collect personal identification information about a cardholder if ―contractually obligated‖ 

to do so (§ 1747.08, subd. (c)(3)(A)), thus providing another layer of protection against 

fraud — depending on the terms of the contracts between the seller, the payment 

processor, the merchant bank, and the bank that issued the credit card.4

A final point: The majority states that when the Legislature wants to regulate 

online businesses, it must do so expressly, as it did in the California Online Privacy 

Protection Act of 2003. (Maj. opn., ante, p. 23.) Under that reasoning, the civil rights 

protections of the Unruh Civil Rights Act (§ 51) would not apply to online businesses 

because that act does not refer to those businesses expressly; similarly, under the 

majority‘s reasoning the Commercial Code would not apply to online businesses because 

the code does not mention those businesses expressly.

III

As noted (see p. 6, ante), this court recently held unanimously that the 

Legislature‘s ―overriding‖ purpose in enacting section 1747.08‘s prohibition against a 

seller‘s recording of a credit-card-using customer‘s personal identification information 

was to protect a consumer‘s right to privacy. (Pineda v. Williams-Sonoma Stores, Inc., 

supra, 51 Cal.4th at p. 534.) Whether to limit or to broaden that right is a power that 

belongs exclusively to the Legislature. The majority here trespasses upon the 

Legislature‘s domain by going far beyond the statute‘s plain language in order to 

 

4 The majority notes that real party in interest Krescent‘s complaint alleges that 

Apple is not contractually obligated to collect personal identification information. (Maj. 

opn., ante, p. 15.) True. But the question here is not whether Apple availed itself of the 

fraud-prevention provisions that the statute offers; rather, the question is whether the 

statute offers some fraud-prevention possibilities. Therefore, that specific allegation of 

the complaint is not relevant here. That Apple has voluntarily chosen to do business in a 

way that precludes it from using the antifraud provisions that the Legislature has 

provided cannot support the majority‘s justification for a general exemption from the 

statute.
8

judicially graft upon the statute an exemption for online sellers such as Apple so they 

need not comply with section 1747.08. Unlike the majority, I would affirm the Court of 

Appeal‘s judgment summarily denying the petition for writ of mandate, thus upholding 

the trial court‘s overruling of Apple‘s demurrer.

KENNARD, J.

WE CONCUR:

BAXTER, J.

JONES, J.*

 

* Presiding Justice of the Court of Appeal, First Appellate District, Division Five, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
1

DISSENTING OPINION BY BAXTER, J.

I respectfully dissent.

Section 1747.08 of the Civil Code1 was enacted to prevent any retailer such as 

defendant Apple Inc. from collecting and exploiting the personal identification 

information of consumers who use credit cards to make their purchases. Plaintiff‘s 

complaint sufficiently states a cause of action under this statute: it alleges that defendant 

required and recorded plaintiff‘s address and telephone number as a condition to his 

online purchases of electronically downloadable products, and that defendant‘s actions 

were not otherwise permitted by the statute. In holding to the contrary, the majority 

relies on speculation and debatable factual assumptions to carve out an expansive 

exception to section 1747.08 that leaves online retailers free to collect and use the 

personal identification information of credit card users as they wish.

I.

Because this case comes to us on a demurrer, ―we review the allegations of the 

operative complaint for facts sufficient to state a claim for relief. In doing so, we treat 

the demurrer as admitting all material facts properly pleaded.  ̳ ―Further, we give the 

complaint a reasonable interpretation, reading it as a whole and its parts in their 

context.‖ ‘ [Citations.]‖ (C.A. v. William S. Hart Union High School Dist. (2012) 53 

Cal.4th 861, 866.)

 

1 All further statutory references are to this code unless otherwise indicated.
2

Plaintiff seeks statutory penalties for defendant‘s alleged violations of section 

1747.08, a statute enacted to ―  ̳protect the personal privacy of consumers who pay for 

transactions with credit cards.‘ ‖ (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 

Cal.4th 524, 534 (Pineda); see Archer v. United Rentals, Inc. (2011) 195 Cal.App.4th 

807, 827.) Subdivision (a) of section 1747.08 (section 1747.08(a)) provides: ―Except as 

provided in subdivision (c), no person, firm, partnership, association, or corporation that 

accepts credit cards for the transaction of business shall do any of the following: [¶] . . . 

[¶] (2) Request, or require as a condition to accepting the credit card as payment in full or 

in part for goods or services, the cardholder to provide personal identification 

information, which the . . . corporation accepting the credit card . . . records upon the 

credit card transaction form or otherwise.‖ For purposes of the statute, subdivision (b) of 

section 1747.08 (section 1747.08(b)) defines ―personal identification information‖ as 

―information concerning the cardholder, other than information set forth on the credit 

card, and including, but not limited to, the cardholder‘s address and telephone number.‖ 

Subdivision (c) of section 1747.08 (section 1747.08(c)) states in pertinent part that 

section 1747.08(a) does not apply if, among other things, the person or entity accepting 

the credit card is contractually obligated to provide personal identification information in 

order to complete the credit card transaction (§ 1747.08(c)(3)(A)), or is obligated by 

federal or state law or regulation to collect and record such information 

(§ 1747.08(c)(3)(C)), or requires the information ―for a special purpose incidental but 

related to the individual credit card transaction, including, but not limited to, information 

relating to shipping, delivery, servicing, or installation of the purchased merchandise, or 

for special orders‖ (§ 1747.08(c)(4)).

Plaintiff‘s complaint contains the following allegations, some of which are based 

on information and belief. Plaintiff purchased media downloads from defendant on 

various occasions in 2010. Defendant‘s Web site would not permit plaintiff to obtain his 

purchases by credit card unless he first provided his telephone number and address. Such 
3

personal information was not required by the credit card processing company to complete 

the transaction. But even if the credit card processing company required a valid billing 

address and credit card identification number, under no circumstance would plaintiff‘s 

telephone number be required to complete the purchase transaction. Defendant ―records 

each consumer‘s personal information, including, but not limited to a telephone number 

and address, in line with each credit card transaction, and keeps records of such personal 

information.‖ Defendant ―is not contractually obligated to provide a consumer‘s 

telephone number and/or address in order to complete the credit card transaction,‖ nor is 

defendant required to record such personal information under federal or state law or 

regulation or for any incidental purpose such as shipping.

Assuming the truth of these allegations, they establish that defendant required and 

recorded plaintiff‘s personal identification information when plaintiff used his credit card 

to make purchases, and that none of the exceptions listed in section 1747.08(c) applied, at 

least as to some of the information taken. Accordingly, plaintiff‘s complaint adequately 

states a cause of action for violation of section 1747.08.

II.

The majority implicitly agrees that defendant‘s conduct falls within the plain terms 

of section 1747.08(a). (See maj. opn., ante, at p. 7.) The majority holds, however, that 

plaintiff was not entitled to protection of his personal identification information because 

online credit card purchases of electronically downloadable products are categorically 

exempt from the statute‘s application. (Maj. opn., ante, at pp. 2, 12, 26.) Although 

recognizing this is a question of statutory construction, the majority reaches a result that 

is contrary to the terms, purpose, and legislative history of section 1747.08.

The rules governing statutory construction are uncomplicated and settled. When 

construing a statute, our goal ―is to ascertain the intent of the lawmakers so as to 

effectuate the purpose of the statute.‖ (Estate of Griswold (2001) 25 Cal.4th 904, 910.) 

We look first to the language of the statute, mindful that the words ―  ̳ ―should be given 
4

the meaning they bear in ordinary use. [Citations.]‖ ‘ ‖ (Dicampli-Mintz v. County of 

Santa Clara (2012) 55 Cal.4th 983, 992.) Judicial construction, and judicially crafted 

exceptions, are appropriate only when literal interpretation of a statute would yield 

absurd results or implicate due process. (Cassel v. Superior Court (2011) 51 Cal.4th 113, 

124; In re C.H. (2011) 53 Cal.4th 94, 107.) Otherwise, a statute ―must be applied in strict 

accordance with [its] plain terms.‖ (Cassel, at p. 124.) ―  ̳ ―Only when the statute‘s 

language is ambiguous or susceptible of more than one reasonable interpretation, may the 

court turn to extrinsic aids to assist in interpretation.‖ [Citation.]‘ ‖ (In re Ethan C.

(2012) 54 Cal.4th 610, 627.) Under no circumstance, however, may the court ―  ̳under 

the guise of construction, rewrite the law or give the words an effect different from the 

plain and direct import of the terms used.‘ [Citation.]‖ (Dicampli-Mintz, at p. 992.) In 

this regard, the court ―  ̳ ―must assume that the Legislature knew how to create an 

exception if it wished to do so . . . . [Citation.]‖ ‘ ‖ (Ibid.)

Section 1747.08(a) contains language broadly stating that ―no person, firm, 

partnership, association, or corporation that accepts credit cards‖ shall request or require 

the cardholder to provide personal identification information and cause it to be recorded. 

Section 1747.08(a) flatly states its proscriptions shall apply ―[e]xcept as provided in 

subdivision (c).‖ Section 1747.08(c) lists various business-related reasons for which the 

requesting, requiring, or recording of personal identification information does not violate 

section 1747.08(a). Virtually all of these exceptions could apply either in online credit 

card purchase transactions, or in face-to-face purchase transactions occurring at brickand-mortar establishments.2 There is nothing in subdivision (a), (b), or (c) suggesting a 

 

2 E.g., section 1747.08(c)(1) (credit card used as deposit to secure payment); section 

1747.08(c)(2) (cash advance transactions); section 1747.08(c)(3)(A) (personal 

identification information contractually required to complete the credit card transaction); 

section 1747.08(c)(3)(C) (information required by federal or state law or regulation); 

(footnote continued on next page)
5

literal construction of section 1747.08 would implicate due process or result in absurd 

consequences.

Subdivision (d) of section 1747.08 (section 1747.08(d)) lists one additional 

proviso to the statute‘s application. It clarifies that no person or entity subject to the 

statutory proscriptions is prohibited ―from requiring the cardholder, as a condition to 

accepting the credit card as payment in full or in part for goods or services, to provide 

reasonable forms of positive identification,‖ such as a driver‘s license or other form of 

photo identification, ―provided that none of the information contained thereon is written 

or recorded.‖ (Ibid.) Section 1747.08(d) further provides that if the cardholder uses a 

credit card number to pay for the transaction without making the ―card available upon 

request to verify the number, the cardholder‘s driver‘s license number or identification 

card number may be recorded.‖ Unlike section 1747.08(c), section 1747.08(d) makes no 

allowance for the recording of a cardholder‘s address or telephone number. Instead, it 

permits retailers to require presentment of reasonable forms of positive identification, and 

when the credit card itself is not made available, to write down a license number or other 

photo identification card number.

Had section 1747.08(d) been written to require retailers to demand and visually 

inspect a cardholder‘s driver‘s license or other photo identification card as a condition of 

accepting a credit card, then one might reasonably infer the proscriptions of section 

1747.08(a) could have no application to online credit card transactions given the asserted 

impossibility of complying with the statutory commands. As it stands, however, section 

1747.08(d) is merely permissive and thus poses no barrier or difficulty to an online 

 

(footnote continued from previous page)

section 1747.08(c)(4) (information necessary for special purpose incidental but related to 

the individual credit card transaction, such as shipping, servicing, or installation).
6

retailer‘s compliance with the entirety of the statute. Moreover, section 1747.08(d) does 

not, in any event, permit the recording of addresses or telephone numbers for card-notpresent purchases at brick-and-mortar establishments.3 Finally, there is nothing in this or 

any other subdivision in section 1747.08 that requires retailers, of any sort, to accept 

credit cards for purchases when they deem the risk of fraud or identity theft unacceptable. 

Hence, the statutory terms reflect a legislative determination that heightened privacy 

interests in personal information such as addresses and telephone numbers outweigh the 

necessity or usefulness of such information for any supposed fraud prevention purpose in 

card-not-present transactions.

In sum, applying section 1747.08(a) to online retailers flows logically from the 

plain meaning of the statute, is not absurd, and fully promotes the legislative objective to 

protect the personal identification information of credit card users against exploitation by 

retailers. Under these circumstances, we are bound to construe section 1747.08 ―in strict 

accordance with [its] plain terms.‖ (Cassel v. Superior Court, supra, 51 Cal.4th at p. 

124.)

Undeterred by the plain language of section 1747.08, the majority emphasizes the 

substantive provisions of section 1747.08 were first enacted ―almost a decade before 

online commercial transactions became widespread.‖ (Maj. opn., ante, at p. 6.) From 

this the majority posits ―[w]e cannot assume that the Legislature, had it confronted a type 

of transaction in which the standard mechanisms for verifying a cardholder‘s identity 

were not available, would have made the same policy choice as it did with respect to 

transactions in which it found no tension between privacy protection and fraud 

prevention.‖ (Id. at p. 11.) The majority views section 1747.08(d) as demonstrating ―the 

 

3 Consistent with this conclusion, the majority concedes ―section 1747.08(d) does 

not permit Apple to collect a billing address in the course of an online transaction.‖ (Maj. 

opn., ante, at p. 14.)
7

Legislature‘s intent to permit retailers to use and even record personal identification 

information when necessary to combat fraud and identity theft‖ (maj. opn., ante, at p. 12), 

but finds such provision has no application to online transactions because ―an online 

retailer cannot visually inspect the credit card, the signature on the back of the card, or 

the customer‘s photo identification‖ (ibid.). According to the majority, the Legislature 

did not intend for section 1747.08 to apply to online credit card transactions, ―[b]ecause 

the statutory scheme provides no means for online retailers . . . to protect against credit 

card fraud . . . .‖ (Maj. opn., ante, at pp. 15-16.)

Even assuming resort to extrinsic aids is appropriate, the majority bases its 

construction of section 1747.08 on two critical, but flawed, assumptions. The first 

assumption is that the legislative intent underlying the statute is not limited to protecting 

consumer privacy, but also extends to protecting consumers and retailers from ―undue 

risk of fraud.‖ (Maj. opn., ante, at p. 10.) The second is a factual assumption — that the 

personal identification information defendant allegedly demanded and recorded here, i.e., 

cardholder addresses and telephone numbers, are ―necessary to combat fraud and identity 

theft‖ in online credit card transactions. (Maj. opn., ante, at p. 12.) As demonstrated 

below, there is no legislative source to support the former assumption, and no factual 

basis in the complaint or judicially noticeable materials to support the latter.

The language of section 1747.08 reflects its underlying purpose is to safeguard 

consumer privacy by prohibiting any person or entity from requiring, requesting, or 

recording personal identification information when such information is unnecessary to 

complete a credit card transaction. That section 1747.08 has no primary antifraud 

purpose is demonstrated by its terms: the statute does not purport to require retailers to 

take antifraud measures; nor does it condition its protections on a retailer‘s ability to 

protect against credit card fraud.

The legislative history is in accord. As we recently explained in our unanimous 

opinion in Pineda, supra, 51 Cal.4th 524, the Legislature enacted the predecessor to 
8

section 1747.08 in order ―to provide robust consumer protections by prohibiting retailers 

from soliciting and recording information about the cardholder that is unnecessary to the 

credit card transaction.‖ (Pineda, at p. 536.) The precise concern prompting the 

Legislature‘s action was that retailers were acquiring this additional but unnecessary 

personal information ―  ̳for their own business purposes — for example, to build mailing 

and telephone lists which they can subsequently use for their own in-house marketing 

efforts, or sell to direct-mail or tele-marketing specialists, or to others.‘ ‖ (Id. at pp. 534-

535.)4

Significantly, neither Pineda nor the legislative history itself mentions a legislative 

intent to protect retailers from undue risk of fraud. That is not surprising, because the 

Legislature enacted the consumer privacy protections with the understanding that a 

retailer was not put at risk of loss from fraud, so long as the retailer complied with the 

card issuer‘s operating procedures for credit card transactions. (See Dept. of Consumer 

Affairs, Enrolled Bill Rep. on Assem. Bill No. 2920 (1989-1990 Reg. Sess.) July 21, 

1990, p. 2 (Enrolled Bill Report) [―the credit card issuer guarantees payment to the 

retailer if proper procedures are followed (even if the consumer does not pay the credit 

card company)‖].) Thus, notwithstanding counsel‘s factual assertions at oral argument 

(see maj. opn., ante, at p. 13), the relevant legislative history undercuts the majority‘s 

theory that retailer protection was a principal objective of section 1747.08.

Although the legislative history discloses a concern about credit card fraud, such 

concern pertained specifically to the circumstance that recordation of unnecessary 

personal information posed a fraud risk to the cardholder, not the retailer, because the 

information could be used ―in conjunction with the credit card number to order goods by 

 

4 At this stage in the proceedings, defendant has not filed an answer or given an 

explanation as to why it collects the addresses and telephone numbers of cardholders and 

what it does with such information.
9

phone or mail and charge it to the cardholder‖ or ―to apply for other sources of credit in 

the cardholder‘s name.‖ (Enrolled Bill Rep., supra, at p. 2 [―By the time the subterfuge 

is discovered, the consumer‘s credit and credit history could be severely damaged.‖].) 

Yet, despite this awareness in 1990 that credit cards were being used to ―order goods by 

phone or mail‖ (ibid.), the Legislature provided no exception to section 1747.08‘s 

applicability for mail order and telephone order (MOTO) purchases.

Like retailers that accept credit cards for online purchases, those that accept credit 

cards for MOTO transactions have no opportunity to visually inspect a driver‘s license or 

other forms of photo identification as allowed by section 1747.08(d). That online and 

MOTO retailers appear similarly situated in this regard renders implausible the majority‘s 

theory that the Legislature would not have intended ―section 1747.08(a)‘s prohibitions to 

apply to [online] transactions despite the unavailability of section 1747.08(d)‘s 

safeguards.‖ (Maj. opn., ante, at p. 12.) The majority offers no reason, cogent or 

otherwise, why the Legislature, having enacted section 1747.08‘s privacy protections 

without an exception for MOTO transactions, would not also contemplate applicability of 

the statutory protections to other card-not-present transactions such as those occurring 

online.

The majority additionally views section 1747.08(d) as demonstrating ―the 

Legislature‘s intent to permit retailers to use and even record personal identification 

information when necessary to combat fraud and identity theft.‖ (Maj. opn., ante, at p. 

12, italics added.) But again, neither the language nor the history of section 1747.08 

indicates this to be the case, and we may assume the Legislature knew how to create such 

an exception had it intended to do so. (Dicampli-Mintz v. County of Santa Clara, supra, 

55 Cal.4th at p. 992.) In any event, this matter comes to us on a demurrer, and there is 

nothing in the record from which we may discern that both cardholder addresses and 

telephone numbers are necessary to combat online fraud and identity theft. Because the 

necessity issue is a factual one that appears open to reasonable debate, it seems a 
10

particularly inappropriate basis for sustaining a demurrer and judicially limiting the plain 

reach of section 1747.08.

Finally, the majority views the enactment of the California Online Privacy 

Protection Act of 2003 (Bus. & Prof. Code, § 22575 et seq.; COPPA) as signifying that 

―when the Legislature intends to address online transactions, it does so unambiguously.‖ 

(Maj. opn., ante, at p. 23.) This conclusion appears incongruous with the majority‘s 

express acknowledgement that courts do not rely on ―wooden construction of [statutory] 

terms‖ when ―construing statutes that predate their possible applicability to new 

technology.‖ (Id. at pp. 7-8; see also id. at p. 8 [―  ̳Drafters of every era know that 

technological advances will proceed apace and that the rules they create will one day 

apply to all sorts of circumstances they could not possibly envision.‘ ‖]; e.g., O’Grady v. 

Superior Court (2006) 139 Cal.App.4th 1423 [holding that petitioners‘ Web sites qualify 

as periodical publications under the California reporter‘s shield law].)

COPPA‘s disclosure requirements do nothing to restrict an online retailer‘s use of 

a consumer‘s personal identification information; nor do they prevent the sharing or sale 

of such information. True, consumers who are not satisfied with a retailer‘s posted 

privacy policy may always decline to purchase the retailer‘s products. But today‘s 

decision deprives consumers of section 1747.08‘s additional safeguards, which in 

contrast to COPPA make retailers bear the burden of privacy protection. The majority‘s 

interpretation of section 1747.08 foists this burden onto consumers, leaving consumers 

unable to freely use their credit cards for online purchases without surrendering their 

personal identification information.

III.

Pure and simple, a literal interpretation of section 1747.08 that includes online 

credit card transactions within its scope promotes the Legislature‘s intent to scrupulously 

protect the privacy of credit card users and is not absurd. This interpretation is also 

consistent with our unanimous opinion in Pineda, supra, 51 Cal.4th 524, which 
11

recognized that section 1747.08‘s ―overriding purpose was to  ̳protect the personal 

privacy of consumers who pay for transactions with credit cards‘ ‖ (Pineda, at p. 534)

and ―to provide robust consumer protections by prohibiting retailers from soliciting and 

recording information about the cardholder that is unnecessary to the credit card 

transaction‖ (id. at p. 536). I see no reason to depart from Pineda‘s conclusion that 

protecting consumer privacy is the ―evident purpose of the statute.‖ (Ibid.)

If defendant and other retailers wish to demonstrate that section 1747.08 is illsuited to the online industry because the collection of personal identification information 

presently serves a valid antifraud function, they may make their case to the Legislature. 

Unlike this court, the Legislature would have the opportunity to take evidence on the 

issue, to weigh the antifraud utility of such information against the potential of its misuse 

and exploitation, and, if appropriate, to craft a balanced statutory exception that preserves 

the privacy interests of consumers while responding to legitimate antifraud and identity 

theft concerns of online retailers. Unfortunately, today‘s decision relies on speculation 

and debatable factual assumptions to wholly strip online credit card users of the statutory 

consumer privacy protections, leaving online retailers free to require personal 

identification information as a condition of credit card acceptance and to use such 

information for whatever purposes they wish. Rather than fashioning such an expansive 

exception to section 1747.08, this court should have given effect to its plain terms and 

left it to the Legislature to address defendant‘s claims of competing policy interests.

BAXTER, J.

WE CONCUR:

KENNARD, J.

JONES, J.*

________________

* Presiding Justice, Court of Appeal, First Appellate District, Division Five, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Apple, Inc. v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding XXX

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S199384

Date Filed: February 4, 2013

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Carl J. West

__________________________________________________________________________________

Counsel:

Gibson, Dunn & Crutcher, Daniel M. Kolkey, S. Ashlie Beringer, Austin V. Schwing, Timothy W. Loose and Molly 

Cutler for Petitioner.

Willenken Wilson Loh & Delgado, William A. Delgado and Eileen M. Ahern for Ticketmaster LLC as Amicus 

Curiae on behalf of Petitioner.

Drinker Biddle & Reath, Sheldon Eisenberg and Kristopher Davis for eHarmony, Inc., as Amicus Curiae on behalf 

of Petitioner.

Sidley Austin, Mark E. Haddad, David R. Carpetner; Paul Hastings, Thomas P. Brown and Kristin M. Hall for eBay, 

Inc., Walmart.com USA, LLC, California Retailers Association and NetChoice as Amici Curiae on behalf of 

Petitioner.

No appearance for Respondent.

Schreiber & Schreiber, Edwin C. Schreiber and Eric A. Schreiber for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Daniel M. Kolkey

Gibson, Dunn & Crutcher

555 Mission Street, Suite 3000

San Francisco, CA 94105

(415) 393-8200

Eric A. Schreiber

Schreiber & Schreiber

16501 Ventura Boulevard, Suite 401

Encino, CA 91436-2068

(818) 789-2577