California Attorney General Issues Guidance on Do Not Track

by Ropes & Gray LLP
Contact

In 2013, the California Legislature passed a tracking transparency bill, AB 370, which amended the California Online Privacy Protection Act (“CalOPPA”). AB 370 requires commercial website operators to inform users of how they respond to the Do Not Track (“DNT”) browser signal. Consumers can use the DNT signal to indicate that they do not wish website operators to track their online activities on and between websites. Although consumers can indicate this wish, AB 370 does not require that website operators adhere to the signal by refraining from tracking consumers’ online activities. Instead, AB 370 merely requires that website operators inform consumers how they respond to the DNT signal.

This left stakeholders at a loss as to how exactly to comply with the new DNT disclosure requirement. In response to this ambiguity, the California Attorney General Kamala Harris (“CA AG”) issued a guidance entitled Making Your Privacy Practices Public (the “Guidance”) on May 21, 2014.

Legal Framework of Do Not Track

Generally, CalOPPA regulates how commercial website operators and online services collect, store, and share personally identifiable information (“PII”) of Californians. It requires commercial website operators to conspicuously post privacy policies informing users of how and why they and third parties will use PII. Many website operators question why they ought to adhere to CalOPPA. The answer is that the combination of California’s robust economic presence and the interconnectivity of the web means CalOPPA affects most commercial website operators. The CA AG can bring enforcement actions against website operators who violate CalOPPA, and has shown a willingness to reach broadly.

Additionally, the FTC has brought a number of actions against companies claiming that misstatements in privacy policies are unfair trade practices under Section 5 of the FTC Act. In 2010, the FTC endorsed the DNT signal as a uniform way for users to choose whether commercial website operators could collect information about their online searching and browsing activities. The White House echoed this in its 2012 report entitled, Consumer Data Privacy in a Networked World, which stated, “privacy-enhancing technologies such as the ‘Do Not Track’ mechanism allow consumers to exercise some control over how third parties use personal data or whether they receive it at all.” To date, there has been no public action brought by the FTC regarding a company’s DNT signal disclosure, though the potential for it doing so is another reason for caution.

The CA AG’s recent Guidance recommends website operators do the following to comply with AB 370:

  • Devote a section of the privacy policy to DNT, entitled “How we respond to Do Not Track Signals,” “Online Tracking,” or “California Do Not Track Disclosures.”
  • Describe the website operator’s response to DNT or other mechanism.
  • Also describe, including whether the website operator actually honors DNT.
  • If the website operator does not honor DNT, then provide a “clear and conspicuous link to a program that offers consumers a choice about online tracking.”
  • Disclose presence of other parties that collect PII on website operator’s site or service.
  • Confirm that privacy policy disclosures reflect the website’s actual DNT practices.

What Do “Best Practices” Mean?

Some stakeholders have questioned whether the CA AG’s “best practices” and “recommendations” carry the force of law. They ask whether website operators face regulatory actions if they do not follow the CA AG’s recommendations, and conversely, whether following the CA AG’s recommendations will protect them from regulatory action or litigation. In response, the CA AG stated in issuing the Guidance that her recommendations in them “in some places offer greater privacy protection than required by existing law, are not regulations, mandates or legal opinions.” It remains unclear how this statement will affect regulatory action and litigation.

While CalOPPA does not provide for a private right of action, the CA AG can bring enforcement actions under the law. Violations of CalOPPA may result in penalties of $2,500 per violation. Therefore, website operators should take heed of the CA AG’s Guidance on DNT and update their privacy notices accordingly.

Is the Consent Model Still Valid?

The Guidance indicates the CA AG is reinforcing the approach of earlier privacy frameworks, which focused on trying to achieve consumer transparency and consent. However, the White House issued two reports this month, both of which indicate a desire to move away from the consumer consent model and towards more direct governmental regulation of data use. This is being recommended in large part in recognition that the transparency and consent regulatory model is ineffective. For instance, the May 2014 Report to the President entitled Big Data and Privacy: A Technological Perspective, remarked that “[o]nly in some fantasy world do users actually read these notices and understand their implications before clicking to indicate their consent.” It remains to be seen whether the notice and consent model is being taken to a potentially formalistic high with AB 370 (to be followed by other governments), or whether states and Washington will begin to meaningfully turn their focus to how data is used by different businesses. For the time being, the requirements of AB 370 are on the books and apply to most website operators. 

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.

© Ropes & Gray LLP | Attorney Advertising

Written by:

Ropes & Gray LLP
Contact
more
less

Ropes & Gray LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.