Last week, the California State Senate and Assembly passed AB 370, a bill to amend the California Online Privacy Protection Act (CalOPPA) that would require operators of commercial websites or “online services” to disclose how the site responds to “do not track” signals sent by web browsers, which in turn will trigger enforceability by federal and state authorities. The amendment is expected to be signed by Governor Jerry Brown. Currently, there is no agreed upon definition of tracking, sharing, or permitted uses when a DNT preference is expressed. Nor is there agreement on the propriety of devices or user agents (rather than informed consumers) setting DNT signals by default.

In addition to the existing requirements California law places upon operators of commercial websites and online services, AB 370 would add two additional requirements:

  • Disclose how the website or online service “responds to ‘do not track’ signals or other mechanisms that provide consumers a choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across different Web sites or online services;”
  • Disclose whether other parties may collect personally identifiable information about an individual consumer’s online activities when a consumer uses the operator’s Web site or service.

Since its endorsement in the 2009 FTC Staff Report, “Self-Regulatory Principles for Online Behavioral Advertising” and subsequent legislative proposals, the Do Not Track (DNT) concept gained momentum with the formation of the Tracking Protection Group within the Worldwide Web Consortium (W3C). The W3C group made good progress in creating a proposal for a standard Do Not Track (DNT) protocol for a browser or similar user agent to signal a consumer’s preference not to be tracked across web sites. But industry, academic, and consumer advocacy participants have foundered over the last two years in reaching agreement on what that signal should mean. With the recent departure of the group’s co-chair, Peter Swire, to serve as part of a high-level group reviewing US intelligence and communications technologies, quick adoption of a uniform DNT standard seems more challenging than ever.

Consumer privacy advocates often cast doubt on self-regulation and call for legislative DNT solutions. California’s amendment does not require honoring a DNT standard, but merely the disclosure of how a website or online service will respond to such a signal. It also would follow the enforcement model for California mobile policies, by which a party will receive 30 days’ advance notice and an opportunity to cure before any enforcement action is taken. But the California approach is nonetheless problematic.

While the DNT signal generated under the proposed W3C protocol is supposed to be directed primarily to third parties (not to publishers of the web sites that consumers are browsing), the CalOPPA amendments seem directed to first parties. And while the DNT signal as envisioned by W3C is directed at data gathering practices that go beyond PII, CalOPPA by definition is limited to PII in a narrower sense. While the breadth of that CalOPPA’s definition of PII may be debatable, it may not be as extensive as the de-identified segmenting data that DNT advocates are trying to encompass in DNT. Finally, there is currently no agreed upon definition of tracking, sharing, and permitted uses when a DNT preference is expressed, nor is there agreement on the propriety of devices or user agents (rather than informed consumers) setting DNT signals by default.

California legislators may see this as a way to “shame” operators into compliance, but this is an odd climate in which to “shame” parties into compliance with an unfinished spec. Under these circumstances, any publisher of a web site accessible to California residents should be cautious in how they respond to the California bill when it becomes effective. A website that represents it honors DNT signals by not tracking consumers online activities will be held to that vague representation not only in California, but in other states and by the Federal Trade Commission, as well.

For full analysis of the California legislation, click here.