United States: Attorney General's Office Issues "Do Not Track" Disclosure Guidelines

Last Updated: June 4 2014
Article by Mauricio F. Paez, Ka-on Li and Richard J. Johnson

The California Attorney General's Office recently issued a set of guidelines, titled "Making Your Privacy Practices Public" ("Guidelines"), designed to help companies develop "meaningful" privacy policies that provide transparency, accountability, and choice for online users. The Guidelines build on prior publications by the California Attorney General and consolidate and update existing recommendations. The Guidelines also specifically add new recommendations concerning adoption of so-called "Do Not Track" or "DNT" mechanisms.

When California enacted the California Online Privacy Protection Act ("CalOPPA") in 2004, it was the first state in the United States to require providers of websites and online services used by California residents to conspicuously post privacy policies. Such providers are required to detail the personally identifiable information ("PII") they collect, the categories of third parties with whom they share such PII, and the process the consumer can use to review and make changes to stored PII, as well as to ensure that their privacy policies include effective dates and descriptions of subsequent changes. Importantly, although the introduction to the Guidelines acknowledges that they advocate greater privacy protection than required by existing law (e.g., CalOPPA), the recommendations may eventually become enforceable obligations as any published privacy policy will be enforceable against the company, such as for example on consumer protection grounds.

Accordingly, it is important for companies to consider the recommendations, as well as existing law, when developing or revising privacy policies applicable to websites and online services used by California residents. The Guidelines, like CalOPPA, apply to all operators of commercial websites and online services that collect PII about Californians, regardless of where those operators are located (i.e., even if outside the United States).

Familiar Advice

Through the Guidelines, the California Attorney General continues to advocate for transparency, accountability, and choice for the benefit of consumers, to enhance trust in the provider and increase customer satisfaction. Not surprisingly, the Guidelines focus on familiar concepts such as data minimization, just in time notice, and layering. In this regard, the Guidelines highlight recommendations that have been part of existing guidance from the California Attorney General, the FTC, and other regulators, including:

  • Readability: using plain, straightforward language and avoiding technical or legal jargon.
  • Data Sharing and Use: explaining uses of PII beyond what is necessary for fulfilling a customer transaction or for the basic functionality of the online service, and providing a link whenever possible to the applicable privacy policies of third parties with whom PII is shared.
  • Individual Choice and Access: describing the choices a consumer has regarding the collection, use, and sharing of PII.
  • Accountability: including the provider's contact details in the privacy policy.

These aspects of the Guidelines provide a useful summary of relevant considerations for companies drafting or amending a privacy policy, and they are worthy of review.

New Do Not Track Guidance

The Guidelines provide advice on DNT mechanisms, which has been a hot topic of significant interest in the United States and abroad. Recently, the FTC, the White House, and the California Legislature, among others, have expressed heightened interest in addressing consumer tracking and profiling practices and related privacy concerns arising from DNT. The recommended DNT mechanisms automatically communicate a consumer's choice about the collection of PII over time and across third-party websites or online services. However, as noted by the Guidelines, there are presently no legal requirements prohibiting online tracking or requiring any particular response to a DNT browser signal or any other mechanism that automatically communicates a consumer's choice not to be tracked. In 2013, however, California became the first state to require disclosure of the company's response to such signals, as well as the potential for third-party tracking on its website.1

The recommendations on DNT mechanisms focus on readability and advocate the use of understandable language, descriptive headers, and appropriate placement. The Guidelines also provide the following DNT-specific recommendations on how a company should describe its response to DNT signals (as required by California law and advocated by other regulators):

  • Accurately describe whether customers whose browsers send a DNT signal are treated differently from those without a signal; and
  • Understand the collection of PII about a consumer's browsing activities over time and across third-party websites or services after receiving a DNT signal, and describe the uses of that information, if applicable.

With respect to disclosing the presence of third parties conducting online tracking on the operator's website or service, the Guidelines recommend that the company should:

  • Allow only approved third parties on its website or service to collect PII from consumers who use or visit it;
  • Determine how it would verify that authorized third parties are not bringing unauthorized parties to the website or service to collect PII; and
  • Employ appropriate mechanisms to ensure that authorized third-party trackers comply with its DNT policy and, if not, disclose how they might diverge from the company's policy.

Continuing Challenges

As noted by the Guidelines, although transparency, accountability, and choice are widely accepted principles in theory, their implementation remains subject to considerable debate. Indeed, the responses of companies to DNT have varied, and many companies have yet to respond to California's new DNT disclosure requirements. Some companies maintain that they do not respond to DNT signals because they do not track their customers over time or across third-party websites to provide targeted advertising. Other companies provide more detail about their tracking activities and those of third parties on their websites.

Failure to disclose or underdisclosure in violation of California's requirements on DNT raises various risks. The California Attorney General's Office is expected to continue to review companies' privacy policies and issue 30-day warnings to noncompliant companies.2 Companies can also face fines of up to $2,500 per violation of California law, with each download of a noncompliant mobile app constituting a single violation.

Conversely, companies that do not honor DNT signals and make this disclosure in an unqualified manner could face consumer backlash.

When drafting DNT disclosures, as with privacy policies more generally, companies must proceed in a manner that strikes the right balance between these two competing alternative outcomes. The Guidelines focus on transparency, accountability, and choice, and they provide some guidance on high-level issues that companies should consider. By including recommendations that go beyond what is strictly required under California law, particularly with regard to the recommendations on disclosure of tracking across third-party websites or online services, the Guidelines leave room for each company to place itself appropriately on the privacy spectrum.

For the latest privacy and cybersecurity legal developments, see the May 2014 Jones Day Privacy and Cybersecurity Update.

Footnotes

1. See AB-370 Consumers: internet privacy; " California Legislature Active on Privacy and Data Protection," Jones Day Alert, September 2013.

2. This is consistent with the recent statement by Jeff Rabkin, Special Assistant Attorney General for Law and Technology, that the Attorney General's Office will review companies' privacy policies, work with companies to ensure they follow the new aspects of California law on DNT, issue 30-day warnings to companies that do not comply, and ultimately consider litigation. See Vindu Goel, "California Urges Websites to Disclose Online Tracking," May 21, 2014, The New York Times.

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
Richard J. Johnson
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.