California Issues New Privacy Law Recommendations

by Holland & Knight LLP
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[author: Peter Ormerod]

Peter C. Ormerod
Peter C. Ormerod]

On May 21, 2014, California Attorney General Kamala D. Harris issued a series of recommendations concerning recent changes in California privacy law.  The guide, titled "Making Your Privacy Practices Public," is intended to help businesses navigate the recent legal changes, and Making Your Privacy Practices Public.

In a statement accompanying the release of the recommendations, Attorney General Harris said, "California has proven that robust and balanced privacy protections are consistent with a thriving innovation economy.  This guide is a tool for businesses to create clear and transparent privacy policies that reflect the state’s privacy laws and allow consumers to make informed decisions."

Background

In 2003, California enacted the California Online Privacy Protection Act, which requires the operators of commercial websites—including mobile apps—to provide users with the operative privacy policy if the website collects personally identifiable information from Californians. 

The law was amended in 2013 to require privacy policies to include information on how the operator responds to "Do Not Track" or analogous mechanisms.  The amended law also requires privacy policies to explicitly state whether third parties can collect users’ personally identifiable information.

Attorney General Harris formed a "Privacy Enforcement and Protection Unit" (PEPU) in 2012 with the stated purpose of enforcing federal and state laws that regulate the collection, retention, disclosure, and destruction of private or sensitive information by the government, organizations, corporations, and individuals. 

Upon receiving requests from the business community on the legal requirements of privacy policies, Attorney General Harris directed PEPU to consult with a variety of stakeholders and develop the recommendations unveiled today.

Key Recommendations

  • Prominently label the section of your policy regarding online tracking, for example: "California Do Not Track Disclosures."
  • Describe how you respond to a browser’s Do Not Track signal or similar mechanisms within your privacy policy instead of providing a link to another website.
  • If third parties are or may be collecting personally identifiable information, say so in your privacy policy.
  • Explain your uses of personally identifiable information beyond what is necessary for fulfilling a customer transaction or for the basic functionality of the website or app.
  • Describe what personally identifiable information you collect from users, how you use it and how long you retain it.
  • Describe the choices a consumer has regarding the collection, use and sharing of his or her personal information.
  • Use plain, straightforward language that avoids legal jargon and use a format that makes the policy readable, such as a layered format. Use graphics or icons instead of text.

Further information, including statements from several major corporations and additional background on privacy law in California, is available in the press release accompanying the announcement.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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