Developing a Meaningful Privacy Policy

by Pepper Hamilton LLP
Contact

In May 2014, California’s Attorney General Kamala Harris released recommendations for businesses addressing recent changes and best practices under California’s privacy laws. The guide is entitled “Making Your Privacy Practices Public: Recommendations on Developing a Meaningful Privacy Policy.”1 California is widely known for leading the nation in privacy laws, and particularly laws with respect to Web site privacy policies. Because these laws apply to any Web site with visitors from California, regardless of the location of the business, all companies should take heed of these recommendations. It is important to note that these recommendations do not carry the force of law and in some respects offer greater privacy protection for visitors than is required by existing California law.

Background

In 2003, California established the landmark California Online Privacy Protection Act (CalOPPA), which was the first law in the nation to require operators of commercial Web sites, including mobile apps, to conspicuously post a privacy policy if they collect personally identifiable information from Californians. In 2013, CalOPPA was amended by Assembly Bill 370, which requires privacy policies to include information on how operators respond to Do Not Track signals or similar mechanisms.

In 2012, Attorney General Harris created the Privacy Enforcement and Protection Unit to enforce federal and state privacy laws regulating the collection, retention, disclosure, and destruction of private or sensitive information by individuals, organizations, and the government. The unit also works to educate consumers and recommend best practices to businesses on privacy-related issues.

In 2014, Attorney General Harris’ Privacy Enforcement and Protection Unit consulted with numerous stakeholders from the business sector, academia, and privacy advocates, and developed the recommendations described in this alert.

Summary

At a high level, Attorney General Harris’s latest recommendations provide that companies publish privacy policy statements that not only address data collection and use practices but that are also easily readable and understandable by the general public. The guidance contains recommendations in the following broad areas:

  • scope of policy
  • availability
  • readability
  • data collection
  • online tracking/do not track
  • data use and sharing
  • individual choice and access
  • security safeguards
  • effective date, and
  • accountability.

Detailed Recommendations

The guide sets forth detailed recommendations on how to create meaningful privacy policies that do more than simply meet legal requirements.

Scope of Policy

Companies should explain the scope of their privacy policies. For example, a policy may apply only to online data collection and use practices, or it may also apply to a company’s offline practices. The explanation of the scope should also clearly set forth the entities covered by the policy, such as any subsidiaries or affiliates.

Availability

For Web sites, policies should be posted conspicuously. So visitors can easily locate the policy, the link should be on the homepage and every page where personal information is collected; the link should be in a larger font, perhaps in a contrasting color; and should contain the word “privacy.”

For online services such as mobile applications, links to the policy should be on the platform page as well as within the actual application (such as a settings page or “information” page). Users must be able to view the policy before they download an application.

Readability

In general, privacy policies should be written in plain language. This means: (1) minimizing technical or legal jargon; (2) using short sentences; (3) using the active voice; (4) using titles and headers; (5) possibly providing the policy in multiple languages; and (6) considering the format of the policy on the screens on which it will be read.

Data Collection

Every privacy policy should clearly describe how a company collects personally identifiable information. This includes disclosure of whether the company collects personally identifiable information on users or visitors from other sources, or through technologies such as cookies or web beacons. Further, the policy should describe the specific kind and categories of personally identifiable information collected. Companies collecting personally identifiable information from children under the age of 13 should consult the Federal Trade Commission’s guidance on the Children’s Online Privacy Protection Act.2

In general, personally identifiable information is any information relating to an identified or identifiable natural person. It includes any piece of information that can be used to uniquely identify or trace an individual’s identity, alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.3

Online Tracking/Do Not Track

In 2013, California passed AB370, a “tracking transparency” law that amended CalOPPA by adding disclosures about online tracking (i.e., collecting personally identifiable information about consumers as they move across different Web sites or online services over time) to the requirements for a privacy policy. The new provisions do not prohibit online tracking or set a standard for how operators should respond to a “Do Not Track” (DNT) browser signal; but merely require disclosures regarding (1) how the operator does respond to such signals or similar mechanisms and (2) the possible presence of other parties conducting online tracking to the operator’s site or service.

Online tracking is invisible to consumers. Consumers whose browsers send a DNT signal cannot easily determine how a site or service responds to the signal. Thus, the guidance recommends:

  • Clearly identify the section of the privacy policy relating to online tracking. Headers such as “How We Respond to Do Not Track Signals,” “Online Tracking” or “California Do Not Track Disclosures” are good examples.
  • Describe how the Web site responds to DNT signals or similar mechanisms. The description may explain whether the Web site treats visitors whose browsers send DNT signals are treated differently or whether the Web site responds at all to DNT signals.
  • If a policy does not describe a Web site’s response to DNT signals, it should contain a conspicuous link to a program that offers consumers a choice about online tracking, along with a brief, general description of what the program does.
    • Disclose whether or not the Web site complies with the program in the privacy policy.
    • Disclose the effect of the program. For example, does participation result in the cessation of collection of personally identifiable information across Web sites or online services over time?
    • Make sure that the linked page clearly identifies steps consumers must take to exercise the choice offered by the program.
  • Disclose whether other parties collect personally identifiable information on the Web site or service, if any. If so:
    • Are they only approved parties?
    • How does the company verify that authorized third parties are not bringing unauthorized parties to the company’s site or service to collect personally identifiable information?
    • Can the company ensure that authorized third-party trackers comply with its DNT policy?

Data Use and Sharing

A privacy policy should explain a company’s use and sharing of personally identifiable information. In particular, if personally identifiable information is used beyond what is required for a customer transaction or for basic functionality, this should be disclosed. The policy should further explain the company’s practices regarding sharing personally identifiable information with third parties (such as affiliates and marketing partners). Other data use disclosures include:

  • a list of the different types or categories of companies with which the company shares personally identifiable information
  • links to privacy policies of third parties with whom the company shares personally identifiable information, and
  • the retention period for each type or category of personally identifiable information collected.

Individual Choice and Access

Each privacy policy should describe the choices consumers have regarding the collection, use and sharing of their personal information. The policy should further explain how individuals can exercise these choices. Internally, companies should ensure that their practices actually honor consumer choices.

Additionally, consumers should be provided with an opportunity to review and correct their personal information. Of course, prior to granting access to personal information, companies should verify identities and authenticate access rights, particularly with respect to sensitive information. Companies should then carefully document any changes or corrections to personal information through audit logs or transaction histories.

Security Safeguards

A privacy policy should explain how a company protects its customers’ personal information from unauthorized access, modification, use and destruction. This can include a general description of internal security measures, as well as measures a company imposes on third parties with whom it shares customer personal information.

Effective Date

Clearly identify the effective date of a privacy policy. Explain how you will notify consumers about any material changes to the policy in the future. The guidance suggests that companies go further than merely changing policy language online to make consumers aware of such changes.

Accountability

Each policy should contain contact information in the event a consumer has questions or concerns about a company’s privacy policies and practices. At a minimum, provide a title and e-mail address, but also consider providing a telephone number. Make sure someone at the company is adequately trained to handle requests and questions regarding the company’s privacy policy and practices.

Pepper Point

The recommendations summarized above will help you craft a more meaningful privacy policy. Each company’s privacy practices are different and each company has unique concerns. Pepper Hamilton’s attorneys routinely advise and draft privacy policies for businesses of varying sizes and industries, and can assist in the creation of a tailored privacy policy that not only meets legal requirements, but is also customized for your particular needs.

Endnotes

1 To view the full publication, please see http://oag.ca.gov/sites/all/files/agweb/pdfs/cybersecurity/making_your_privacy_practices_public.pdf.

2 To review a copy of the guidance, please see http://www.business.ftc.gov/documents/0493-Complying-with-COPPA-Frequently-Asked-Questions.

3 For a detailed definition of “personally identifiable information” in California, see California Senate Bill No. 46 (can be viewed at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB46).

 

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.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton 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.