California's New How-to Guide for Privacy Policies

by Latham & Watkins LLP
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On Wednesday, the Attorney General of California released a new privacy guide, titled Making Your Privacy Practices Public.  The guide doesn’t purport to be a restatement of California law (or other law) and expressly disclaims that, but it does present what the AG’s office views as a best practice approach to crafting privacy disclosure materials while covering some unique California requirements.  It also highlights recent revisions to California’s online privacy law (known as “CalOPPA”) that require companies to address online tracking by describing how their website responds to Do Not Track (DNT) requests.  All in, it presents a handy checklist and is very likely a gentle (and helpful) reminder that the office will be on the lookout for those who have yet to come into compliance with the new requirements.

While the guide lays out many useful recommendations, its underlying theme is a call for enhancing the readability of policies.  Responding to research that shows that most web users do not read or understand privacy policies, the guide encourages writing in plain English, avoiding jargon, and structuring the policy with clear headings, short sentences, and a simple layout.  This good advice may seem obvious, but one need not surf the web long to find examples of enforcement cases targeting brands that missed that mark.  Iterative, overly legalistic privacy policies are not only hard for consumers to understand (and thus ineffective disclosures), but they also challenge companies to ensure that they are accurate, comprehensive, and fully implemented.  As a result, companies wind up violating their own privacy policies, often because of internal resistance to maintaining the policy as a living document, as new products, data uses or sharing practices arise in the ordinary course of business.  We highlighted many examples of enforcement cases that had their roots in outdated privacy policies or drafting errors in a joint International Association of Privacy Professionals webinar presented with Joanne McNabb of the Director of Privacy Education and Policy, Privacy Enforcement and Protection Unit, California Department of Justice.  The webinar here and the slides are available here

Helpfully, the California AG’s guide points out that consumer understanding can also be enhanced by providing “contextualized notice” of privacy practices.  Short disclosures alongside data collection points that use standardized language and include links to more detailed information are preferred.  Contextual notice is especially important when a data use (such as a request for location data or to access contacts or photos) might be unexpected.  The guide mentions these “just-in-time” notifications as being most helpful within mobile apps, though in all instances this practice would help to comply with CalOPPA’s requirement that the privacy policy be “conspicuous.” 

As noted at the outset of this post, the guide also discusses compliance with California’s DNT disclosure rules.  The guide advises a separate section on tracking policies.  This section should clearly describe how a site responds when a user enables any of the various browser’s DNT feature or “other mechanisms” providing consumers the ability to control tracking over time across third-party sites and services—if the site or service engages in such tracking.  (Alternatively, an operator may satisfy the requirement by providing a clear and conspicuous hyperlink in the operator’s privacy policy to an online location containing a description, including the effects, of any program or protocol the operator follows that offers the consumer that choice.)  The disclosure should also advise about the presence of third parties conducting online tracking on the site or service.  Your policy must also identify whether third parties may use your website to collect personal information from consumers.  You can find more information about the DNT disclosure rules in our post made when they came into effect.

The release of this guide offers a good opportunity to review your privacy policy and consider how it stands up to the growing list of requirements established by California as well as current best practices.

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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