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On the Second Day of Privacy, California Gave to Me......

Well, the headlines don't exactly work with the traditional tune, but blame the editor for that.....

Written by Jake Romero, CIPP/US

2013 was a busy year for California.  We passed a budget with a surplus, let Kim and Kanye get engaged in one of our stadiums and panicked over possibly losing Sriracha sauce.  At the same time, we also passed a number of significant pieces of legislation related to data privacy, the effects of which will be felt throughout the year.

  • Happy New Year!  Consumer Notification Laws Effective as of January 1, 2014 – “Do Not Track” and Data Breach Notification

Two laws going into effect on the first of the year will require additional notifications to consumers.  The first, A.B. 370, amends Section 22575 of California’s Business and Professions Code to require any operator of an online service to disclose in its privacy policy (1) how it responds to “Do Not Track” signals or similar tools and settings and (2) whether third parties are permitted to collect personally identifiable information about consumer online activities over time and across different websites when a consumer uses that online service.

As we discussed earlier this year, the absence of a universal industry standard for “Do Not Track” (which is not defined in the statute), may create pitfalls for unwary online service operators as they attempt to comply with the law’s requirements.  A full, clear and accurate description of an online service’s interpretation of Do Not Track signals will likely require significant review and diligence by, among others, that service’s operational and technical managers and support staff.  An online service that inaccurately describes the additional disclosures required by A.B. 370, or fails to update those disclosures in a timely manner following operational changes, may incur liability for engaging in deceptive practices.  On the other hand, a blanket disclosure stating that the service does not honor Do Not Track signals may ward off potential customers and damage the service’s reputation.

Under A.B. 370, online service operators are deemed to have satisfied the requirement to disclose the service’s interpretation of Do Not Track signals (but not the required disclosure regarding tracking by third parties), by linking to a description of a program or protocol that the operator follows that allows the consumer to exercise choice regarding collection of personally identifiable information.  Note that this option is only effective if the operator follows and complies with the protocol to which it directs consumers.  This may be problematic because many protocols, including the Digital Advertising Alliance (previously discussed here), require that all third party advertisers on the service be members of the program.  An online service operator hoping to take advantage of this option will need to have policies in place to assess compliance on an ongoing basis, including with respect to its third party advertisers.

The other consumer notification law going into effect is S.B. 46, which expands California’s data breach notification requirements to include incidents involving certain types of online data.  S.B. 46 amends Sections 1798.29 and 1798.82 of the California Civil Code to expand the definition of “personal information” to include “[a] user name or email address, in combination with a password or security question and answer that would permit access to an online account.”

As we previously discussed, this expansion of California’s notification requirement could significantly increase the number of reportable incidents in two ways.  First, California’s data breach notification requirements will apply to many more online service providers, as this type of online account information is commonly collected by websites.  Second, websites that only collect online account information may not have the type of robust safeguards and policies that an online service that collects other types of personal information, such as social security numbers, driver’s license numbers or credit card, medical or health insurance information, has already put in place.  We recommend that online services that collect “personal identification” as defined under that term’s expanded definition review our recommendations for preparing to comply with the new law here.

  • Sector-Specific Regulations Effective as of January 1, 2014 – Medical Information and Customer Electrical or National Gas Usage Data

In addition to the generally applicable laws described above, two pieces of industry-specific legislation will also go in effect.  A.B. 658 amends Section 56.06 of the California Civil Code, which is part of the “Confidentiality of Medical Information Act” (or “CMIA”).  The CMIA prohibits providers of health care or recipients of individually identifiable medical information from using or disclosing medical information for any purpose not necessary to provide health care services to patients, without first obtaining authorization.  A.B. 658 will expand the definition of “provider of health care” so that this prohibition will also apply to “[a]ny business that offers software or hardware to consumers, including a mobile application or other related device that is designed to maintain medical information . . . in order to make the information available to an individual or a provider of health care at the request of the individual or a provider of health care, for purposes of allowing the individual to manage his or her information, or for the diagnosis, treatment, or management of a medical condition of the individual . . .”  This change to the CMIA should be of particular concern to mobile application developers and operators.  With the use of mobile applications generally on the rise, health care related applications are expected to play a part in promoting wellness and addressing a number of issues, including rural access to health care.  However, as compared to the average website, mobile applications typically require a more complex system of third party service providers that may have access to data, and can be an inherently challenging platform for displaying notices.

As of January 1, we will also see new regulations applicable to businesses that use “smart meter” data.  For the past three years, utilities have been prohibited from sharing or disclosing data regarding individual consumption or use of electricity or natural gas by an individual without that individual’s prior consent.  A.B. 1274, extends this prohibition to non-utility businesses, and requires that such businesses disclose any third parties with whom they share such information and how it will be used.  In addition, A.B. 1274 requires businesses to use reasonable security procedures and practices to protect usage data from unauthorized access or disclosure, and put in place contractual requirements with any third parties who receive usage data requiring those third parties to do the same.  A.B. 1274 also requires certain steps to be taken when disposing of usage data, and prohibits businesses from offering incentives to consumers who allow their information to be accessed without prior consent.

  • Looking Ahead – Children’s Privacy Rights

The supporters of the ballot initiative known as the California Personal Privacy Initiative may have dropped their efforts, but we expect that in 2014 California will continue its aggressive push to increase data privacy regulation and enforcement.  We will also be tracking preparations for S.B. 568, which goes into effect on January 1, 2015.  S.B. 568 prohibits operators of online services directed toward minors under the age of 18 (as well as online services not directed toward minors, if the operator of the service has actual knowledge of a minor using the service and advertisements are specifically directed to that minor based on information the minor has provided) from marketing certain products (including alcoholic beverages, firearms, ammunition, spray paint, cigarettes, fireworks, tanning devices, lottery tickets, tattoos, drug paraphernalia and obscene materials).  S.B. 568 also requires that these types of online services permit minors to remove or request the removal of content or information posted by that minor and provide certain specific disclosures regarding deletion of online information.  We discuss S.B. 568 in further detail and provide recommendations for preparing to comply with the new requirements here.



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Cynthia J. Larose

Member / Co-Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.