United States: California Legislature Active On Privacy And Data Protection

Last Updated: September 25 2013
Article by Mauricio F. Paez

The California Legislature was active in August and early September in the area of privacy and data protection, with three separate bills making their way through both houses and currently awaiting the Governor's approval. California has long been on the forefront of privacy and data protection development, and these bills are the latest steps to strengthen consumer privacy protection.

A.B. 370, a bill amending the California Online Privacy Protection Act ("CalOPPA") was unanimously passed by the California Senate and Assembly in late August ("Do-Not-Track Bill"). In general, the Do-Not-Track Bill adds new disclosure requirements for operators of commercial websites and online services to disclose (i) how they respond to "do not track" mechanisms exercised by consumers, and (ii) whether third parties may collect personally identifiable information on their websites when a consumer uses such a website.

S.B. 46, a bill amending California's current data breach notification law (as codified in California Civil Code §§1798. 29 and 1798.82) also was passed by both houses in California in late August ("Breach Notice Bill"). The Breach Notice Bill requires consumer notification if an individual's user name or email address, in combination with a password or security question and answer that would permit access to an online account, has been exposed. The Breach Notice Bill also addresses the methods of data breach notice options.

S.B. 365, a bill entitled the "Privacy Rights for California Minors in the Digital World," adds two new sections to the California Business & Professions Code and was unanimously passed by the California Senate in the first week of September, after previously clearing the California Assembly ("Minors' Privacy Bill"). The Minors' Privacy Bill prohibits certain types of marketing to individuals under the age of 18 years residing in California and allows minors to delete materials they have posted online under specified circumstances.

Do-Not-Track Bill

  • The Do-Not-Track Bill aims to boost consumer awareness of online behavioral tracking by adding the following two disclosure requirements for operators of commercial websites and online services that collect personal information from consumers who visit their sites:
  • Disclose how the operator responds "to 'do not track' signals or other mechanisms that provide consumers a choice regarding the collection of personally identifiable information about an individual consumer's online activities over time and across different Web sites or online services" and
  • "Disclose whether other parties may collect personally identifiable information about an individual consumer's online activities when a consumer uses the operator's Web site or service."

In its current form, CalOPPA generally requires the conspicuous posting of a privacy policy that describes (i) the categories of personally identifiable information that the operator collects about individual consumers who use or visit its website or online service, (ii) third parties with whom the operator shares the information, (iii) the process by which consumers can review and change the collected personally identifiable information, and (iv) the process by which it will notify consumers of changes to its website's privacy policy. Enforcement action will be taken only if a party fails to post its privacy policy within 30 days after being notified of noncompliance.

Although this bill is popularly referred to as the "Do Not Track" legislation, its amendments do not actually impose a "do not track" ("DNT") standard on websites. The bill merely calls for the disclosure of how a website or online service operator will respond to such a DNT signal, should a consumer exercise choice regarding the collection of the relevant personally identifiable information. The Do-Not-Track Bill also permits disclosure through the website's privacy policy of the "do not track" signal response through a hyperlink to an online location of the program the website uses to offer its consumers that choice.

Breach Notice Bill

The Breach Notice Bill extends protections for consumers by requiring breach notifications for additional categories of data. Currently, breach notification in California is triggered by the unauthorized acquisition of an individual's first name or initial and last name in combination with one or more of the following unencrypted types of data: Social Security number; driver's license or state identification number; account, credit card, or debit card number in combination with any required security or access codes; medical information; or health information. The Breach Notice Bill adds the following to this list: a "user name or email address, in combination with a password or security question and answer that would permit access to an online account."

In addition, the Breach Notice Bill allows for notification in an electronic form when the exposed identifying information involves only the personal information for an online account, i.e., the user name or email address in combination with password or security question and answer. The Breach Notice Bill also specifies that when the breached information is the login credentials for an email account, the notification must not be provided to that exposed email address, but the notification requirement must be complied with by another specified method or "by clear and conspicuous notice delivered to the resident online when the resident is connected to the online account from an Internet Protocol address or online location from which the agency knows the resident customarily accesses the account."

Minors' Privacy Bill

  • The Minors' Privacy Bill adds specific provisions aimed at protecting California's children. Specifically, the bill prohibits an online operator from:
  • Marketing or advertising specified types of products or services, such as ammunition, alcohol, tobacco, "etching cream," drug paraphernalia, etc. to a minor, either directly or through a third party; and
  • Using, disclosing, or compiling, or allowing a third party to use, disclose, or compile, a minor's personal information for marketing and advertising the specified products or services.
  • These prohibitions do not, however, apply to the "incidental placement of products or services embedded in content, if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising the enumerated products or services." The bill defines "marketing or advertising" as requiring an "exchange for monetary compensation" in order "to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service."

This bill also requires a website operator to:

  • Permit a minor to remove or request the removal of content or information that the minor posted on the website;
  • Provide notice to a minor about the options he/she has to remove information, along with instructions on how to remove content; and
  • Specify in the notice to be provided to the minor that removing one's content "does not ensure complete or comprehensive removal ... posted on the operator's Internet Web site, online service, online application, or mobile application" by the registered user.

Finally, the Minors' Privacy Bill lists specific circumstances under which a website operator or third party is exempt from enabling the erasure of information: (i) the law requires the information to be maintained, (ii) the information was posted on the website by a third party, (iii) the operator makes anonymous the information posted, (iv) the minor is compensated for providing content, or (v) the minor did not follow instructions regarding removing the posted content.

Recommendations

In the event that these bills are enacted into law, operators of a website or online service accessible to California residents and who collect personal information should:

  • Acquaint themselves with the three bills and how they may affect their business;
  • Ensure that their privacy policy complies with the provisions related to the new disclosure requirements in the Do-Not-Track Bill;
  • Conduct an assessment of current practices and adopt standards and procedures for responding to and notifying personal data breaches, keeping in mind the new requirements related to online credentials in the Breach Notice Bill; and
  • Evaluate their marketing and advertising mechanisms, both direct and through third parties, to ensure that they comply with the new requirements enumerated in the Minors' Privacy Bill.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Mauricio F. Paez
Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
McDermott Will & Emery
Frankfurt Kurnit Klein & Selz
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
McDermott Will & Emery
Frankfurt Kurnit Klein & Selz
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think youve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaqs use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributors own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaqs Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaqs Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaqs right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions