Does California’s Amended Online Privacy Law Mean We All Have To Change Our Privacy Policies?

by Gray Reed & McGraw
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When it comes to privacy policies, I usually tell clients they need to comply with California law.  Beginning January 1, 2014, California is adding a new wrinkle we all need to consider.

If you comply with California’s law, you can be confident you have satisfied most of the requirements for other states.  Plus, California’s laws apply to any California consumer who visits your site or uses your mobile app regardless of whether you are based on San Francisco or San Antonio.  In fact, California’s current law requires a privacy policy for all websites that retain any type of information which is one of the reasons we all have basic privacy policies in the first place.

California recently passed an amendment to the California Online Privacy Protection Act (CA OPPA) that will require online and mobile websites to disclose how they respond “do not track” requests.

For most of our clients, we recommend the privacy policy simply provide that you don’t disclose the user’s information to anyone else although you may use cookies or other technologies to track where users came from and where they go.  As long as the website operator did not sell the information, a basic disclosure like that was usually sufficient.

What are the new requirements for my relatively basic website?

If you have a basic website that merely retains IP addresses and basic information, it is not clear whether you need to change your policy.  Rather than live with the doubt, it makes sense to go ahead and comply with the new disclosures.

The ambiguity is there because the law only applies to use of personally identifiable information (PII).  If you aren’t keeping PII, then no need to worry.

So, what is PII?

The law defines PII 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; or (6) Any other identifier that permits the physical or online contacting of a specific individual.”

The California Attorney General says she defines PII as “any data linked to a person or persistently linked to a mobile device: data that can identify a person via personal information or a device via a unique identifier. Included are user-entered data, as well as automatically collected data.”

If the AG enforces the law in a way broader than the definition in the statute, an IP address would be covered by the statute.  Therefore, we are recommending that almost all websites should add the required disclosures than live with the ambiguity.

What do I have to disclose?

The amendment is about disclosure and not action.  You do not have to change your behavior and honor do not track requests — you simply have to disclose what you do about it.  It’s a middle ground that requires disclosures, but does not prevent advertisers from tracking or targeting ads or retaining and using any PII.

But I rely upon on my outside marketing firms. . . 

The new law also applies if your site allows third parties such as ad networks to collect PII. You have “to disclose whether other parties” collect PII regarding a consumer’s “online activities over time and across different Web sites when a consumer uses the operator’s Web site or service.”  It means you also need to know what your marketing firms are doing.  If you have Google AdSense ads on your site or use the service yourself to place ads on other sites, you have to make the disclosure–not your outside marketing firm.

So, what if I don’t change?

If you violate CA OPPA, even if you are not based in California, the California Attorney General can bring a civil action against you or someone in California can bring a class action lawsuit against you.  Granted, you will receive a notice of noncompliance and have 30 days to fix it, but why wait for the notice of non-compliance?  Amend your privacy policies now disclosing what you do, if anything, about do not track requests.

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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