On May 21, 2014, California's Attorney General Kamala D. Harris issued the "Making Your Privacy Practices Public" guide (the "Guide") to provide businesses with guidance on creating more transparent privacy policies that comply with last year's Assembly Bill 370,[1] which amended the California Online Privacy Protection Act[2] ("CalOPPA"). CalOPPA requires operators of commercial websites and online services, including mobile applications, to noticeably and clearly post a privacy policy that identifies the categories of personally identifiable information ("PII")[3] collected by the operator from Californians, the process by which consumers can then review and edit their PII, and the process by which consumers are notified about changes in the operator's privacy policy.[4] Since CalOPPA's enactment, industry attention has shifted towards the practice of online tracking, described in the Guide as the act of tracking an individual consumer's online activities over time and across third-party websites or other online services.[5]

The Guide highlights that most tracking technologies are invisible to website users.[6] As discussed in our previous posting, the FTC endorsed the implementation of a universal Do Not Track (DNT) mechanism in 2010, a mechanism that the FTC contemplated would allow consumers to opt out of such information collection.[7] The DNT mechanism involves placing a persistent setting, similar to a cookie, in the user's browser that signals to websites the consumer's choice about being tracked and receiving targeted advertisements.[8] A.B. 370 added two provisions related to Do Not Track to CalOPPA. First, it requires website and online services operators to disclose in their privacy policies whether or not they honor a user's request not to be tracked using the DNT signals or other mechanisms.[9] Operators can also fulfill this requirement by providing a clear and conspicuous online link to a description of any program or protocol the operator follows to offer consumers that choice.[10] Second, it requires website and online services operators to disclose whether third parties are able to collect PII about a consumer's online activities over time and across third-party websites when the consumer uses the operator's website or online service.[11]

After receiving questions and requests from the business community, the California Attorney General consulted with academic, business and privacy stakeholders and developed and issued the Guide to help businesses understand how to comply with A.B. 370 and, more generally, how to draft short, easily-understood and accessible privacy policies that provide consumers with a real understanding of the business's data collection and use practices.[12] The Guide's general recommendations are more specific and demanding than what CalOPPA requires. Privacy policies should use plain language and an easy to read format. They should disclose not only what PII the business collects from users, but also how the business collects PII, including specific technologies and sources used in the collection process, and how the business utilizes PII beyond what is necessary for fulfilling the user's transaction. Further, privacy policies should include what choices consumers have regarding the collection, use or sharing of that PII; what security measures the business has in place to safeguard PII; and a contact with whom consumers can address questions or concerns about the business's privacy practices.[13]

Regarding Do Not Track, and the amendments made to CalOPPA as a result of A.B. 370, the Guide recommends that privacy policies clearly label sections addressing online tracking, for example "How We Respond to Do Not Track Signals," "Online Tracking" or "California Do Not Track Disclosures."[14] The Guide also recommends that privacy policies describe how operators respond to a browser's DNT signals or other such mechanisms and specifically set forth the operator's response rather than merely providing a link to a related program or protocol, which is also permissible under A.B. 370.[15] The Guide also provides a set of questions for operators to consider in drafting this section of their privacy policies. For instance, operators are encouraged to consider whether they treat consumers whose browsers send a DNT signal differently from those without one, and if the operator continues to collect PII about consumers with a DNT signal as they move across other sites or services, the Guide recommends that the operator describe its uses of PII.[16] For operators choosing not to describe their response to DNT signals, the Guide recommends including not only a clear and conspicuous link to, but also a brief, general description of a program offering consumers choice about online tracking.[17] With respect to third parties collecting PII on an operator's site or service, the Guide recommends that operators consider whether only approved third parties are collecting PII, how the operator might verify that those third parties are not allowing unauthorized persons to collect PII through the operator's site or service, and whether the operator can ensure that authorized third party trackers comply with the operator's DNT policy, if any.[18]

So far, the response to the Guide has been positive. The Vice President and Chief Privacy Officer of Hewlett-Packard commended the State of California for creating a Guide that he believes "strikes the right balance between innovation and the protection of legitimate consumer rights."[19] Microsoft similarly shared its appreciation for the Attorney General's "willingness to engage industry in developing some of the thinking."[20]

Since CalOPPA was passed in 2003, the Attorney General has pursued legal action against businesses for noncompliance with online privacy law. It is important to note that like the FTC Privacy Report[21] issued in 2012, the Guide does not have the force of law. However, it does provide clarity and practical application recommendations that should be regarded by businesses as a roadmap for complying with CalOPPA.

Géraldine Rothschild