United States: California Significantly Expands Consumer Privacy Protections - But Email Warrant Protections Get Vetoed Again

Last Updated: December 4 2013
Article by Andy Roth and Andy Blair

From passing the first state breach notification requirements to third party marketing disclosure requirements, California has long been a consumer privacy bellwether. California lawmakers have built the nations most robust state-level privacy regime and California regulators are among the nation's most active in enforcement and influencing policy. The state shows no signs of letting up, extending consumer privacy protections through the recent adoption of three first-of-their-kind laws increasing transparency and consumer control over online data.

In contrast to these expansions, Governor Jerry Brown has again vetoed a bill that would require a warrant for law enforcement access to emails stored by a service provider.

Right of Content Removal for Minors

First, California has granted minors who are registered users of websites and mobile apps1 the right to remove content they post online. The right does not extend to adults or to content posted by third parties, but nonetheless marks a significant departure from the "poster beware" approach that has traditionally dominated U.S. privacy law. The bill, SB 568, updates California's Business and Professional Code to:

  • notify minor users of their right to remove content they have posted;
  • provide clear instructions describing how content can be removed;
  • permit minor users to remove or request removal of content they posted; and
  • notify minor users that removing content posted by the user does not ensure complete removal of the content from the website or app.

The amendment contains several exceptions and limitations to the right of removal. Only websites directed to minors or who have actual knowledge that a minor is using the website or mobile app must comply. The right to request removal is further limited to minors, meaning the requestor must be a minor at the time of request and not merely at the time of posting. In addition, removal obligations do not override legal retention or maintenance requirements or include anonymized content, content posted by third parties, or content posted for compensation or other consideration.

Perhaps the most notable exception is for content posted for compensation or other consideration. Community-based sites and apps derive their value from community participation, which primarily consists of users posting content. It will be interesting to see if any websites or apps take the position that users get free access to their site in exchange for posting content and refuse to remove content under the consideration exception. It is too early for any clarification by courts or regulators, but if site access qualifies as consideration for posted content the removal requirements of SB 568 could be dead on arrival.

SB 568 also includes a prohibition on online advertising to minors of certain classes of products and services including alcohol, firearms, drug paraphernalia and obscene matter. While targeted at websites and mobile apps targeted to minors or with actual knowledge that a user is a minor, the categories of prohibited goods and services are broad and the prohibition applies to upstream advertising services. Operators of websites and mobile apps directed to minors can comply with the advertising prohibitions by notifying advertising services that they are directed to minors.

Notably, SB 568 does not take effect until January 1, 2015. Both parts of the law may see First Amendment challenges that could delay implementation or overturn the law.

Online Tracking Disclosures

Second, California has adopted disclosure requirements for websites and online services2 regarding online tracking and targeted advertising. The bill, AB 370, expands the requirements of the California Online Privacy Protection Act3 ("CalOPPA") to include disclosures describing how operators of websites and mobile apps treat user choice mechanisms such as the "Do Not Track" flag now incorporated into all major browsers.

AB 370 applies to operators of websites and online services who collect or allow other parties to collect personally identifiable information ("PII") from consumers "over time and across third-party websites or online services." Covered operators must disclose in their privacy policy how they respond to Do Not Track or other mechanisms that provide user choice regarding collection of PII. In addition, operators must disclose whether other parties, such as advertising networks or other service providers, collect PII through consumers' use of the operator's website or online service.

CalOPPA defines PII to include names, addresses, email addresses, telephone numbers, social security numbers or other identifier that permits the physical or online contacting of a specific individual. Operators and advertisers that do not collect information in any of these categories may not collect PII as defined by CalOPPA.

AB 370 is further limited by its application only to the collection of PII over time and across third-party websites. CalOPPA may not apply to operators who do not leverage third-party advertising platforms or other third-party services.

Covered operators who follow programs or protocols, such as members of the Network Advertising Initiative, can comply with AB 370 by providing a clear and conspicuous link to an online description of the program or protocol.

Breach Notification for Usernames and Passwords

Finally, California has increased the scope of its breach notification provisions to include breaches of access credentials. The first state to include these categories of data in a breach notice statute, California has recognized the damage that can be caused by loss of user credentials that are often re-used across multiple sites.

Existing state breach notice laws focus on an individual's name in combination with other sensitive categories of data. The expansion of California's statute to include user names, passwords and similar credentials marks a significant departure from the PII-focused approach taken by all 46 states with breach notice laws.

The expanded breach notice law, SB 46, provides some flexibility in notification where only access credentials are breached. Breached entities can comply with the notification requirements through electronic notice that directs affected individuals to promptly change their access credentials or take other appropriate steps to protect their online accounts.

However, breached entities may not notify users of a breach involving an email address credential through that breached email address. Notification may be of a method described in the law or clear and conspicuous notice to the user when the user connects to the online account from a known online location or IP address.

Email Warrant Requirement

Rejecting overwhelming approval by the California legislature, Governor Jerry Brown vetoed SB 467, a measure that would require law enforcement to obtain a warrant before accessing email maintained by service providers. The veto, approved by margins of 73-3 in the Assembly and 33-1 in the Senate, marks Governor Brown's third block in as many years of warrant protections for emails held by third party service providers.

Governor brown cited concern over the impact of the bill on law enforcement, stating that notice requirements in the bill went beyond federal law and could impede ongoing investigations.

Many service providers, including Google and Facebook, have chosen to follow the Sixth Circuit decision in United States v. Warshak and require warrants before turning over the contents of user emails on Fourth Amendment grounds, despite the as-yet unresolved circuit split caused by the Warshak decision.

Client Impact

The changes in California privacy law have the potential to impact any organization with a website or mobile app. California privacy laws are generally regarded as the most rigorous in the nation and are viewed as the de facto standard for websites and online services in the US. A review of current data collection and use practices and privacy policies can help identify how your organization is impacted. Organization should consult counsel before making any determinations on how the California privacy law changes impact their operations.

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.

Events from this Firm
22 Jan 2019, Seminar, San Francisco, United States

Dentons is pleased to offer a full day of classes, just in time for the California MCLE compliance period deadline of January 31, 2019.*

23 Jan 2019, Seminar, Los Angeles, United States

Dentons is pleased to offer a full day of classes, just in time for the California MCLE compliance period deadline of January 31, 2019.*

24 Jan 2019, Other, New York, United States

Join Dentons’ Health Care Partner Lori Mihalich-Levin and White Collar & Government Investigations Counsel Christine Genaitis as they lead conference sessions at AHLA Academic Medical Centers and Teaching Hospitals Institute.

Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
McDermott Will & Emery
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
McDermott Will & Emery
Related Articles
Related Video
Up-coming Events Search
Font Size:
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 you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 Mondaq’s 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 Contributor’s 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.

Mondaq’s 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.


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 Mondaq’s Services.


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 Mondaq’s 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