United States: Making Privacy Practices Public: The California Attorney General’s New Guidelines Keep The Focus On The Consumer’s Perspective And New Disclosure Requirements

In 2013, the California Online Privacy Protection Act (CalOPPA) was amended to require web sites and other online services to make additional privacy policy disclosures related to online tracking transparency. Within the online privacy policy that is required under CalOPPA, web site and online service operators are required to disclose (1) how the operator responds to browser Do Not Track (DNT) signals and similar requests and (2) whether any third parties are permitted to track users of the service. By the time the amendment to CalOPPA went into effect on January 1, 2014, however, it was clear that there would be considerable confusion about how to comply with the new requirements. Although it is understood in general terms, there is no universal standard for responses to DNT and industry efforts to define precisely what it means to honor a DNT response had stalled.

As part of a broader attempt to provide guidance regarding compliance with CalOPPA, the California Attorney General's Office has released a set of guidelines titled Making Your Privacy Practices Public: Recommendations on Developing a Meaningful Privacy Policy. Although the guidelines are not law (and in some cases make recommendations beyond what is minimally required by CalOPPA), implementing the recommended practices can help online service providers avoid regulatory consequences such as Attorney General enforcement actions or even Federal Trade Commission enforcement actions. In addition to providing an overview of the well-established CalOPPA notice content requirements, the guidelines include a number of best practices covering fundamental aspects of how notice is provided:

Do Not Track Disclosures.  Although considerable space is devoted to addressing the new DNT disclosure requirements, the guidelines are unlikely to satisfy those seeking additional clarity regarding how to formulate a description of a web site's DNT response. Since there is no universal standard for DNT, any online service provider that makes an unqualified promise to honor DNT takes on a substantial risk of breaking that promise. Instead, the guidelines recommend that service operators provide consumers with a description of the tracking programs being used in connection with the service, in easy-to-locate sections with a clearly identifiable heading. DNT disclosures should describe all tracking of users that is done over time and across third-party web sites, either directly by the service provider or by a third party. If tracking programs are in place, the policy should disclose how, or if, users whose browsers send a DNT signal are treated differently from other users. Where tracking is conducted by third parties, the guidelines recommend that the service provider consider whether the third parties it authorizes to track users will follow the service provider's DNT policy. If an online service provider cannot ensure that its third-party trackers comply with its DNT policy, then the consumer should be informed. Although CalOPPA permits linking to an online tracking consumer choice program as an alternative to making certain disclosures, the guidelines make it clear that the online service provider must follow the program that it links to, and still retains the risk that an outside link is not sufficiently clear to permit users to control tracking online.

Scope and Availability.  Issues of scope and availability need to be reconsidered as the ways in which consumers receive products and services becomes more complicated. Any business that collects information about its customers offline should clarify whether its online privacy policy applies to those offline collection activities. Mobile application providers should ensure that the privacy policy is available both (1) prior to download and (2) after download, within the application itself.

Readability.  The guidelines recommend plain, straightforward language that avoids legal or technical jargon. In particular, consideration should be given to the format and readability of mobile application privacy policies, since the user will be accessing those policies on a smaller screen. Simply moving your clunky online privacy policy to the small screen is not recommended.

Collection and Sharing of Data; Security.  Requiring descriptions of the categories of personal information collected and any third parties with whom information is shared is not new. The guidelines reiterate the minimum requirements for describing collection, use and sharing, and also recommend certain best practices that are not strictly required under the statute, such as providing links to the privacy policies of third parties with whom information is shared and specifying retention periods for each type of personally identifiable information collected. The guidelines also recommend including a general description of security measures used to protect consumer information.

Individual Choice and Access; Accountability.  As we recently discussed in connection with the Federal Trade Commission settlements with Credit Karma and Fandango, issues related to consumer control of information, including access to provide feedback and request information, are key considerations in enforcement actions. Online service providers should provide easy-to-follow instructions for updating or deleting account information, and give consumers a direct point of contact to request changes to the handling of personal information to ensure responsiveness. Rather than relying on a general customer service number, online service providers should consider using a designated line that specifically addresses security concerns and feedback as well as information requests from consumers.

Effective Date.  In addition to providing the effective date on the top of each privacy policy, online service providers should proactively define a process for implementing privacy policy updates (including the mechanics of providing notice to affected users and assessing whether affirmative consent from consumers will be needed to make changes) and describe that process in the policy. As we recently discussed, making changes to privacy policies can create a number of issues with regulators as well as consumers.

Although they do not address some of the recent issues created by the new regulations, the guidelines are an excellent resource for seeing the thought process and focus that the Attorney General's office brings to enforcement actions. In particular, the guidelines continually emphasize the consumer perspective and ensuring readability and access. There is no time like the present to take a step back and review your policies and practices with a fresh set of eyes and from the outlook of your product's users.

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
Jake Romero
 
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.