Amended in Assembly April 7, 2014

Amended in Assembly March 25, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1442

Introduced by Assembly Member Gatto

January 6, 2014

An act to begin delete amend Sections 1798.3, 1798.14, and 1798.19 of the Civil Code, relating to the Information Practices Act of 1977. end delete begin insert add Section 49073.6 to the Education Code, relating to pupil records. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1442, as amended, Gatto. begin delete The Information Practices Act of 1977: local government. end delete begin insert Pupil records: social media. end insert

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Existing law requires school districts to establish, maintain, and destroy pupil records according to regulations adopted by the State Board of Education.

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This bill would, notwithstanding that provision, require a school district, county office of education, or charter school that considers a program to gather or maintain in its records any personal information obtained from social media, as defined, of any pupil enrolled in the school district, county office of education, or charter school to first notify pupils and their parents or guardians about the proposed program, and to provide an opportunity for public comment before the adoption of the program. The bill would require a school district, county office of education, or charter school that adopts a program pursuant to this provision to, among other things, gather and maintain only information that was made publicly accessible, as defined, provide a pupil with access to any personal information about the pupil obtained from social media, and to destroy the personal information gathered from social media and maintained in its records, as provided. If a school district, county office of education, or charter school contracts with a 3rd party to gather personal information from social media on an enrolled pupil, the bill would prohibit the use, sale, or sharing of the information by the 3rd party, and would provide additional restrictions on the destruction of the information by the 3rd party, as specified.

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The Information Practices Act of 1977 requires each state agency to maintain in its records only personal information that is relevant and necessary to accomplish a purpose of the agency required or authorized by the California Constitution or statute or mandated by the federal government.

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This bill would expand that restriction on the maintenance of personal information to apply to a local agency, and would require a state or local agency to destroy personal information when the state or local agency determines it is no longer relevant and necessary to accomplish its purpose. The bill would establish special provisions for a Kindergarten and grades 1 to 12, inclusive, school district regarding the notification of students, parents, and guardians if it considers a program to gather or maintain student personal information in its records, restrictions on the gathering and maintenance of information gathered from social media, as defined, and the destruction of personal information gathered from social media on students maintained by the district.

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By expanding the duties of local officials, this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program:  begin delete yes end delete begin insert no end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 49073.6 is added to the end insert begin insert Education Code end insert begin insert ,
to read: end insert

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begin insert 49073.6. end insert   

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Social media” means an electronic service or account, or
electronic content, including, but not limited to, videos, still
photographs, blogs, video blogs, podcasts, instant and text
messages, e-mail, online services or accounts, or Internet Web
site profiles or locations.

(2) (A) “Publicly accessible” means anything posted on social
media or any other Internet Web site that is accessible to the
general public.

(B) “Publicly accessible” does not include anything posted on
social media or any other Internet Web site that is only accessible
to a restricted group of persons.

(b) Notwithstanding any other law or regulation, a school
district, county office of education, or charter school that considers
a program to gather or maintain in its records any personal
information obtained from social media of any enrolled pupil shall
notify pupils and their parents or guardians about the proposed
program and provide an opportunity for public comment before
the adoption of the program.

(c) Notwithstanding any other law or regulation, a school
district, county office of education, or charter school that adopts
a program pursuant to subdivision (b) shall do all of the following:

(1) Gather or maintain only information that was made publicly
accessible, which shall not include either of the following:

(A) Information that the school district, county office of
education, or charter school knows or has reason to believe was
reposted or otherwise made publicly accessible by another party
without the express consent of the original author.

(B) Any secondary information, including, but not limited to,
geolocation information, derived from content posted to social
media, unless that secondary information was intentionally made
publicly accessible.

(2) Provide a pupil with access to any personal information
about the pupil gathered or maintained by the school district,
county office of education, or charter school that was obtained
from social media, and an opportunity to correct or delete
information that was gathered or maintained in violation of
paragraph (1).

(3) (A) Destroy personal information gathered from social
media and maintained in its records within one year after a pupil
turns 18 years of age or within one year after the pupil is no longer
enrolled in the school district, county office of education, or charter
school, whichever occurs first.

(B) Notify each parent or guardian of a pupil subject to the
program that the pupil’s personal information is being gathered
from social media and that any information subject to this section
maintained in the school district’s, county of education’s, or
charter school’s records with regard to the pupil shall be destroyed
in accordance with subparagraph (A).

(C) If the school district, county office of education, or charter
school contracts with a third party to gather personal information
from social media on an enrolled pupil, the contract shall do all
of following:

(i) Prohibit the third party from using the information for its
own purposes.

(ii) Prohibit the third party from selling or sharing the
information with any person or entity other than the school district,
county office of education, or charter school.

(iii) Require the third party to destroy the information
immediately upon satisfying the terms of the contract, within one
year after a pupil turns 18 years of age, or within one year after
the pupil is no longer enrolled in the school district, county office
of education, or charter school, whichever occurs first.

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begin delete

SECTION 1.  

Section 1798.3 of the Civil Code is amended to
read:

1798.3.  

As used in this chapter:

(a) “Personal information” means any information that is
maintained by an agency that identifies or describes an individual,
including, but not limited to, his or her name, social security
number, physical description, home address, home telephone
number, education, financial matters, and medical or employment
history. It includes statements made by, or attributed to, the
individual.

(b) “Agency” means every state office, officer, department,
division, bureau, board, commission, or other state agency, except
that “agency” shall not include:

(1) The California Legislature.

(2) Any agency established under Article VI of the California
Constitution.

(3) The State Compensation Insurance Fund, except as to any
records that contain personal information about the employees of
the State Compensation Insurance Fund.

(4) A local agency, as defined in subdivision (a) of Section 6252
of the Government Code.

(c) “Disclose” means to disclose, release, transfer, disseminate,
or otherwise communicate all or any part of any record orally, in
writing, or by electronic or any other means to any person or entity.

(d) “Individual” means a natural person.

(e) “Maintain” includes maintain, acquire, use, or disclose.

(f) “Person” means any natural person, corporation, partnership,
limited liability company, firm, or association.

(g) “Record” means any file or grouping of information about
an individual that is maintained by an agency by reference to an
identifying particular such as the individual’s name, photograph,
finger or voiceprint, or a number or symbol assigned to the
individual.

(h) “System of records” means one or more records, which
pertain to one or more individuals, which is maintained by any
agency, from which information is retrieved by the name of an
individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.

(i) “Governmental entity,” except as used in Section 1798.26,
means any branch of the federal government or of the local
government.

(j) “Commercial purpose” means any purpose which has
financial gain as a major objective. It does not include the gathering
or dissemination of newsworthy facts by a publisher or broadcaster.

(k) “Regulatory agency” means the Department of Business
Oversight, the Department of Insurance, the Bureau of Real Estate,
and agencies of the United States or of any other state responsible
for regulating financial institutions.

(l) “Social media” means an electronic service or account, or
electronic content, including, but not limited to, videos, still
photographs, blogs, video blogs, podcasts, instant and text
messages, email, online services or accounts, or Internet Web site
profiles or locations.

SEC. 2.  

Section 1798.14 of the Civil Code is amended to read:

1798.14.  

(a) Nothwithstanding the exception established in
paragraph (4) of subdivision (b) of Section 1798.3, as used in this
section, “agency” includes a local agency, as defined in subdivision
(a) of Section 6252 of the Government Code.

(b) (1) Each agency shall maintain in its records only personal
information that is relevant and necessary to accomplish a purpose
of the agency required or authorized by the California Constitution,
statute, ordinance, or mandated by the federal government, and,
except as provided in subdivisions (c) and (d), shall destroy the
personal information when the agency determines the personal
information is no longer relevant and necessary to accomplish that
purpose.

(2) This subdivision does not apply to official records recorded
in the office of a county recorder.

(c) A school district for kindergarten or grades 1 to 12, inclusive,
that considers a program to gather or maintain in its records
personal information on any student enrolled in the school district
shall notify students, parents, and guardians and provide an
opportunity for public comment prior to the adoption of such a
program.

(d) A school district for kindergarten or grades 1 to 12, inclusive,
that gathers or maintains, or that contracts to gather or maintain
in its records personal information gathered from social media on
a student enrolled in the school district shall do the following:

(1) Gather or maintain only information that was made publicly
accessible, not to include either:

(A) Information that was reposted or otherwise made available
by another party without the express consent of the original author.

(B) Any secondary information, including, but not limited to,
geolocation information, derived from content posted to social
media, unless that secondary information itself intentionally was
made publicly accessible.

(2) Provide students with access to any personal information
about the student gathered or maintained by the district and
obtained through social media, and the opportunity to correct or
delete erroneous information or information gathered or maintained
in violation of paragraph (1).

(3) Destroy personal information gathered from social media
maintained in its records within one year of a student turning 18
years of age, or within one year after the student is no longer
enrolled in the school district, whichever is first.

(4) Notify each parent or guardian of the student that personal
information is being gathered from social media and that any
information maintained in its records with regard to the student
shall be destroyed in accordance with paragraph (3).

(5) If the school district contracts with a third party to gather or
maintain in the records of the third party personal information on
a student enrolled in the school district, require the third party to
hold all student personal information strictly confidential and
prohibit it from using that information for its own purposes, selling
the information, or sharing the information with any other entity
unless required to do so by law.

SEC. 3.  

Section 1798.19 of the Civil Code is amended to read:

1798.19.  

Each agency, when it provides by contract for the
operation or maintenance of records containing personal
information to accomplish an agency function, shall cause,
consistent with its authority, this chapter to be applied to those
records. For purposes of Article 10 (commencing with Section
1798.55), any contractor and any employee of the contractor, if
the contract is agreed to on or after July 1, 1978, shall be
considered to be an employee of an agency. Except as provided
in Section 1798.14, local government functions mandated by the
state are not deemed agency functions within the meaning of this
section.

SEC. 4.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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