United States: Recent Changes To Online Privacy Laws In California

California Online Protection Act

The California Online Protection Act (the "Act") requires a commercial Internet website or online service to conspicuously post a privacy policy on its website if it collects personally identifiable information1 ("PII") about California residents who visit its website.2 Currently, the privacy policy must disclose the categories of PII collected and the third-parties with whom the operator shares the PII; the process by which the operator notifies consumers who use or visit its commercial website or online service of material changes to the operator's privacy policy for that website or online service; the privacy policy's effective date; and, if the operator maintains a process for an individual consumer who uses or visits its commercial website or online service to review and request changes to any of his or her personally identifiable information that is collected, a description of that process.3

Effective January 1, 2014, privacy policies must provide two additional disclosures to comply with the recent amendments set forth in Assembly Bill 370. First, if an operator collects personally identifiable information about an individual consumer's online activities, including those across third-party websites or online services, the privacy policy must include information about how the website operator responds to "do not track" signals or other mechanisms that provide consumers with a choice regarding the collection of such PII.4 An operator may also satisfy this requirement by providing a hyperlink in its privacy policy to a webpage with a description, including the effects, of any program or protocol offered by the operator that provides consumers a choice regarding online tracking. Second, privacy policies must state whether other parties may collect PII when a consumer uses the operator's website or service.5

Although the Act and recent amendments apply only if the person visiting the website is a California resident, residence is not an easily identifiable trait. Geolocation techniques allow an operator to determine the location from which a person accesses its site but they do not tell the operator where that person resides. Accordingly, absent compliance with the new privacy policy requirements at all times and for all users, an operator risks liability under the law.

Expanded Notification Requirements for Data Breaches

Senate Bill 46 expands California's data breach law to encompass breaches of 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."6 Although California's existing data breach law in California Civil Code Section 1798.82 already requires businesses to provide notification of security breaches involving personal information,7 the amended data breach law expands the definition of personal information and prescribes specific notification procedures for breaches implicating user names and email addresses. Specifically, in the case of a breach involving a user name or email address where no personal information and no login credentials of an email account are compromised, the business may comply with the statutory data breach obligations by providing notification in electronic format, such as email or through the individual's online account, advising the individual to change his or her password and security credentials.8

Conversely, where a breach involves an individual's user name or email address and login credentials of an email account, the business cannot comply with the data breach obligations by providing notification to that email address, but may, instead, provide clear and conspicuous notice to the resident online when the resident is connected to the online account from an Internet Protocol address or online location from which the person or business knows the resident customarily accesses the account.9 The business may also comply with the alternative notice obligations set forth in California Civil Code Section § 1798.82(j), e.g., written notice or, where certain requirements are met, substitute notice.10

The expanded data breach law takes effect January 1, 2014. Persons and business entities who conduct business in California and own or license computerized data containing California residents' personal information should be cognizant of the additional data breach notification requirements. To ensure compliance with the heightened obligations, such persons and business entities may wish to amend their existing privacy policy and data security procedures.

California's New COPPA-Like Law

Finally, in September of this year, Senate Bill 568 was signed into law by the Governor of California. The new law has two aims: 1) to limit children's exposure to certain types of advertising and 2) to provide a means for children to remove content they post online. The law goes into effect January 1, 2015.

With respect to advertising, the law prohibits websites and applications directed to minors from marketing products or services that minors cannot lawfully purchase (e.g., alcohol, weapons, lottery tickets, tobacco, etc.).11 A website or application is "directed" to minors where it is "created for the purpose of reaching an audience that is predominately comprised of minors and is not intended for a more general audience comprised of adults."12 Even if the website or application is not directed toward minors, the law requires operators to make a good faith effort not to market such products to minors whom the operator has knowledge are using its site or application.13 The law also prohibits an operator or third-party from using or disclosing a minor's personal information with knowledge that the information will be used to advertise such products to minors.14

The law also imposes several new responsibilities on operators in regard to content control. Most importantly, operators are required to allow minors to request and obtain removal of content they post to a website or application so long as they are registered users. Operators must also deliver notice of this allowance to minors, instructions on how they may request and obtain removal of content, and notice that removal may not be comprehensive.15 The removal of content is not required in some circumstances, including where the content was posted by a third party, where the operator anonymized the content, or where the minor received consideration for providing the content.16

In summary, this new law seeks to protect all minors, as opposed to COPPA, which is limited to minors under 13. Nevertheless, many of the same challenges and risk assessments apply. For example, whether a website or application is directed toward minors is not always obvious, and because liability in some circumstances depends on an operator's knowledge, it is advisable to avoid collecting age information unless necessary for business purposes.

Footnotes

1 Under the Act, "personally identifiable information" is defined as "individually identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form, including any of the following:

(1) A first and last name.
(2) A home or other physical address, including street name and name of a city or town.
(3) An e-mail address.
(4) A telephone number.
(5) A social security number.
(6) Any other identifier that permits the physical or online contacting of a specific individual.
(7) Information concerning a user that the Web site or online service collects online from the user and maintains in personally identifiable form in combination with an identifier described in this subdivision.

Cal. Bus. & Prof. Code § 22577(a).

2 Cal. Bus. & Prof. Code § 22575(a).

3 Id. at § 22575(b).

4 A.B. 370, 2013–2014 Leg., Reg. Sess. (Ca. 2013).

5 Id.

6 Cal. Civ. Code § 1798.82(h)(2) (Effective January 1, 2014).

7 Under existing law, "personal information" means:

1. An individual's first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted:

A. Social security number.
B. Driver's license number of California identification card number.
C. Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account.
D. Medical information.
E. Health insurance information.

Cal. Civ. Code. § 1798.82(h)(1).

8 Cal. Civ. Code § 1798(d)(4) (Effective January 1, 2014).

9 Cal. Civ. Code § 1798(d)(5) (Effective January 1, 2014).

10 Cal. Civ. Code § 1798(d)(5) (Effective January 1, 2014).

11 S.B. 568, 2013–2014 Leg., Reg. Sess. (Ca. 2013).

12 Id.

13 Id. § 22580(b).

14 Id. § 22580(c).

15 Id. § 22581(a).

16 Id. § 22581(b).

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
Karl F. Rutledge
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
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 you’ve 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 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.

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 Mondaq’s 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 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