BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 568 (Steinberg)
As Amended April 1, 2013
Hearing Date: April 23, 2013
Fiscal: No
Urgency: No
BCP
SUBJECT
Privacy: Internet: Minors
DESCRIPTION
This bill would prohibit an operator of an Internet Web site,
online service, online application, or mobile application, as
specified, from marketing or advertising a product or service to
a minor, as defined, if the minor cannot legally purchase the
product or participate in the service in the State of
California. This bill would also prohibit an operator from
using, disclosing, or compiling, or allowing a third party to
knowingly use, disclose, or compile, the personal information of
a minor for the purpose of marketing goods or services that
minors cannot legally purchase in the State of California.
The bill would, on and after January 1, 2015, require the
operator of an Internet Web site, online service, online
application, or mobile application to permit a minor to remove
content or information submitted to or posted on the operator's
Internet Web site, service, or application by the minor, as
specified. This bill would also require the operator to provide
notice to a minor that the minor may remove the content or
information, as specified.
BACKGROUND
Enacted in 1998, the federal Child's Online Privacy Protection
Act of 1998 (COPPA), requires the Federal Trade Commission (FTC)
to issue and enforce a rule (the Rule) concerning children's
online privacy. The FTC further notes that:
(more)
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The primary goal of COPPA and the Rule is to place parents
in control over what information is collected from their
young children online. The Rule was designed to protect
children under age 13 while accounting for the dynamic
nature of the Internet. The Rule applies to operators of
commercial websites and online services directed to children
under 13 that collect, use, or disclose personal information
from children, and operators of general audience websites or
online services with actual knowledge that they are
collecting, using, or disclosing personal information from
children under 13. (Federal Trade Commission: Frequently
Asked Questions about the Children's Online Privacy
Protection Rule
[as of Apr. 19, 2013].)
On December 19, 2012, the FTC announced final amendments to
the COPPA rule in order to strengthen privacy protections for
children and to give parents greater control over personal
information that online services may collect from children.
The New York Times' December 19, 2012 article entitled "New
Online Privacy Rules for Children" reported:
In an era of widespread photo sharing, video chatting and
location-based apps, the revised children's privacy rule
makes clear that companies must obtain parental consent
before collecting certain details that could be used to
identify, contact or locate a child. These include photos,
video and audio as well as the location of a child's mobile
device.
While the new rule strengthens such safeguards, it could
also disrupt online advertising. Web sites and online
advertising networks often use persistent identification
systems - like a cookie in a person's browser, the unique
serial number on a mobile phone, or the I.P. address of a
computer - to collect information about a user's online
activities and tailor ads for that person.
The new rule expands the definition of personal information
to include persistent IDs if they are used to show a child
behavior-based ads. It also requires third parties like ad
networks and social networks that know they are operating on
children's sites to notify and obtain consent from parents
before collecting such personal information. And it makes
children's sites responsible for notifying parents about
data collection by third parties integrated into their
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services. (Singer, New Online Privacy Rules for Children,
The New York Times (Dec. 19, 2012)
[as of Apr. 19,
2013].)
In order to further protect minors online, this bill would
prohibit the operator of an Internet Web site or other online
service from marketing or advertising a product or service to
a minor if the minor cannot legally purchase the product or
participate in the service in California, or, compiling
personal information to market those products or services.
That prohibition would apply to operators that have actual
knowledge that a minor is using its online service or whose
site service is directed to minor. This bill would also, as of
January 1, 2015, permit a minor to remove content or
information posted to a Web site or service, as specified.
CHANGES TO EXISTING LAW
Existing law provides that, among other rights, all people have
an inalienable right to pursue and obtain privacy. (Cal.
Const., art. I, Sec. 1.)
Existing case law permits a person to bring an action in tort
for an invasion of privacy and provides that in order to state a
claim for violation of the constitutional right to privacy, a
plaintiff must establish the following three elements: (1) a
legally protected privacy interest; (2) a reasonable expectation
of privacy in the circumstances; and (3) conduct by the
defendant that constitutes a serious invasion of privacy. (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.)
Existing law recognizes four types of activities considered to
be an invasion of privacy, giving rise to civil liability
including the public disclosure of private facts. (Id.)
Existing case law provides that there is no reasonable
expectation of privacy in information posted on an Internet Web
site. The information is no longer a "private fact" that can be
protected from public disclosure. (Moreno v. Hanford Sentinel
(2009) 172 Cal.App.4th 1125.)
Existing federal law requires an operator of an Internet Web
site or online service directed to a child, as defined, or an
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operator of an Internet Web site or online service that has
actual knowledge that it is collecting personal information from
a child to provide notice of what information is being collected
and how that information is being used, and to give the parents
of the child the opportunity to refuse to permit the operator's
further collection of information from the child. (15 U.S.C.
Sec. 6502.)
This bill would prohibit an operator of an Internet Web site,
online service, online application, or mobile application
directed to minors or the operator of an Internet Web site,
online service, online application or mobile application that
has actual knowledge that a minor is using its Internet Web
site, online service, online application, or mobile application
from:
marketing or advertising a product or service to a
minor, if the minor cannot legally purchase the product or
participate in the service in the State of California; or
using, disclosing, or compiling, or knowingly allowing a third
party to use, disclose, or compile, the personal information
of a minor for the purpose of marketing goods or services that
minors cannot legally purchase or engage in in the State of
California.
This bill , as of January 1, 2015, would require an operator of
an Internet Web site, online service, online application, or
mobile application to do all of the following:
permit a minor who is a user of the operator's Internet
Web site, service, or application to remove content or
information submitted to or posted on the operator's Web
site, service or application by the user; and
provide notice to a minor who is the user of the operator's
Internet Web site, service, or application that the minor may
remove content or information submitted to or posted on the
operator's Web site, service, or application by the user; and
provide notice to a minor who is the user of the operator's
Internet Web site, service, or application that the removal
described above does not ensure complete or comprehensive
removal of the content or information.
This bill , as of January 1, 2015, would provide that an operator
or third party is not required to erase or otherwise eliminate
content or information in either of the following circumstances:
any other provision of federal or state law requires the
operator or third party to maintain the content or
information; or
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the content or information was submitted to the
operator's Internet Web site, service, or application by a
third party other than the minor user, including any
content or information submitted by the minor user that was
republished or resubmitted by the third party.
This bill would provide that the above provisions shall not be
construed to limit the authority of a law enforcement agency to
obtain any content or information from an operator as authorized
by law or pursuant to an order of a court of competent
jurisdiction.
This bill would also define minor as a natural person under 18
years of age.
COMMENT
1. Stated need for the bill
According to the author:
A large part of a child's social and emotional development
is occurring while that child navigates through the digital
world while online and through their cell phone. Children
ages 8 to 18 spend an average of an hour and a half each day
using a computer for purposes other than school work.
Seventy-five percent of teenagers now own cell phones, and
25 [percent] use those phones for social media.
Federal Law, known as the Children's Online Privacy
Protection Act (COPPA)[,] has protections in place to
protect children under the age of thirteen. There is a need
to protect these children, consistent with COPPA, and extend
protections in the digital world to teens. The percent of
teens that use social network sites almost doubles between
ages 12 and 13. In fact, over 80 [percent] of 13 year old
users actively use social media.
Young children and teens are still developing their critical
thinking skills and judgment. As children are coming of age
in the digital world, we see that they have a tendency to
reveal before they reflect. When polled, 92 [percent] of
teens said they should be allowed to erase personal
information that they post.
. . .
SB 568 protects California's children in the digital world.
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The bill prohibits digital sites directed to minors from
advertising or marketing services or products that minors
cannot engage in or legally purchase under California law.
It also prohibits digital sites from advertising or
marketing these illegal products or services to a user they
know to be a minor. The bill stops the practice of
collecting minors' personal information for the purpose of
advertising or marketing services or products that are
illegal for the child to engage in or purchase. SB 568 also
ensures that minors are given the option to erase anything
they have personally posted.
2. Prohibitions related to services or products that a minor
cannot legally purchase
This bill would enact two prohibitions related to the marketing
or advertising of goods or services that a minor cannot legally
purchase or participate in in the State of California. Both of
those prohibitions would apply only where the Internet Web site,
online service, online application or mobile application is
"directed" to minors, or, where the operator has actual
knowledge that a minor is using its Internet Web site, online
service, online application, or mobile application.
a. Prohibition on marketing or advertising
First, the bill would expressly prohibit the marketing or
advertising of a product or service to a minor, if the minor
cannot legally purchase the product or participate in the
service in the State of California. That prohibition
technically restricts the commercial speech of the operator of
the Web site or other online service by prohibiting the
operator from delivering the message (even though the
underlying product cannot lawfully be purchased), but, the
mere fact that it restricts speech does not mean that such a
restriction would violate the First Amendment of the United
States Constitution or Article I of the California
Constitution.
Generally speaking, the First Amendment, and Article I of the
California Constitution, act to protect the freedom of
expression of the citizens of California. Commercial speech,
which is done on behalf of a company or individual for purpose
of making a profit, has not been afforded full protection
under the First Amendment by the United States Supreme Court.
In order to be upheld as a valid restriction on commercial
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speech, the proposed law must meet the following four-part
test: (1) the speech must be about a lawful activity and
cannot be false or misleading; (2) the government must have a
substantial interest; (3) the law must directly advance the
governmental interest asserted; and (4) the law must be no
more extensive than necessary. (Central Hudson Gas v. Public
Service Commission (1980) 447 U.S. 559.)
In this case, the proposed restriction would appear to be a
valid restriction on commercial speech since, as a threshold
matter, one may argue that it is not lawful to advertise
products to a minor that the minor cannot purchase. Even if
the speech is lawful, the State of California arguably has a
strong interest in taking steps to prevent illegal products
from being sold to minors, and, the proposed law would advance
that interest in a manner that does not cover products which
are legal for minors to purchase in California. Although a
determination regarding the First Amendment is ultimately for
the courts, it would appear that the proposed restriction on
marketing and advertising could survive such a challenge.
Staff also notes that, as a matter of public policy, it is
important that minors (who may be impressionable) are not
targeted by advertisers seeking to sell products or services
that the minor cannot legally purchase. Those advertisements
arguably only serve the purpose of encouraging a minor to
purchase a product or service that has already been determined
to be inappropriate for a person of that age.
b. Prohibition on using, disclosing, compiling personal
information for purpose of marketing illegal goods or services
Similar to the above provision, this bill would further
prohibit an operator from using, disclosing, compiling, or
knowingly allowing a third party to use, disclose, or compile
the personal information of a minor for purpose of marketing
good or services that the minor cannot legally purchase. That
prohibition on using the personal information for purposes of
marketing would essentially prevent operators from using
unique details about a minor to market illegal goods or
services to that specific minor. Staff notes that, as with
the other provision, this restriction would only apply where
the operator had actual knowledge that a user was a minor, or,
directed the Web site or service to minors.
Regarding the importance of protecting minors from marketing
of illegal goods or services, the author further asserts:
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"Because of their still developing capacity for
self-regulation, still developing critical thinking skills,
still developing their ability to use sound judgment, and
susceptibility to peer pressure, children and adolescents are
at greater risk than adults as they navigate through the
digital world and experiment with social media. Children are
more susceptible to online marketing of harmful products and
it is our responsibility to ensure that children are not
bombarded with inappropriate advertisements while they are
navigating sites directed towards children or served
advertisements for products they can't legally purchase when
an operator has actual knowledge that they are under the age
of 18. It is our responsibility as a state to ensure that
operators of sites directed towards children do not put our
children's safety in jeopardy."
3. Ability to remove content or information
As of January 1, 2015, this bill would require an operator of an
Internet Web site, online service, online application, or mobile
application to: (1) permit a minor to remove content or
information submitted or posited on the website, service, or
application; and (2) provide notice to a minor of his or her
ability to remove content and a notes that removal does not
ensure complete or comprehensive removal of content or
information.
a. Removal of information and notice of that ability
In support of the need to allow minors to remove information
submitted or posted on a Web site, service, or application,
the author notes: "Children should be allowed to erase that
which they post because mistakes can follow a young person for
a long time and impact their chances of getting into college
and landing a job. In fact, a 2011 Kaplan Survey found that
27 [percent] of college admissions officers check Google and
26 [percent] check Facebook as part of the applicant review
process. . . . Over a third of employers, according to a
CareerBuilder study, say that they will not hire someone whose
Facebook page includes photos of that person drinking or in
provocative dress." Staff further notes that this bill
appears to avoid complicated authentication issues by simply
providing that if a user is a minor, and, that user posts
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content or information - that same user has the ability to
remove that content or information. The ability appears to
already exist for users on sites such as Facebook, but, this
bill would both ensure the continued ability to delete
information that a minor realizes could be harmful to his or
her future endeavors.
Staff notes that the proposed disclosure would also inform
minors that removal does not ensure a comprehensive removal of
information, which, as a practical matter, is important
because even if the posted content is removed from a site
(such as Facebook), that same information may have been cached
by another Internet Web site, copied to another page, or
spread throughout the Internet by other means. As a result,
the language of this bill accurately recognizes the
limitations posed by the Internet, as well as balancing the
speech rights of all parties involved.
b. Limitations
This bill would additionally provide that an operator or a
third party is not required to erase or otherwise eliminate
content or information in either of the following
circumstances: (1) any other provision of federal or state
law requires the operator or third party to maintain the
information; or (2) the content was submitted by a third
party. Those limitations ensure compliance with other laws
and protect the speech rights of third parties who may use a
statement by a minor in the context of their own speech (for
example, a user on Twitter who "retweets" a minor's "tweet"
with their own commentary).
Similarly, this bill would state that the ability for a minor
to remove information shall not be construed to limit the
authority of a law enforcement agency to obtain any content or
information from an operator as authorized by law or pursuant
to an order of a court of competent jurisdiction. That
exception is arguably important given the role that social
networking sites have played in various recent news events -
the information posted by a minor could be of pivotal
importance in the investigation of a crime.
Support : Child Abuse Prevention Center; Children Now; Common
Sense Media; Crime Victims United of California
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Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
SB 501 (Corbett) would require social networking Web sites to
remove the personal information of a registered user, upon
request, and permit a parent or legal guardian of a registered
user who identifies himself or herself as under 18 years of age
to request the social networking internet Web sites to remove
personal identifying information of their children. This bill
is set for hearing on April 23, 2013 in the Senate Judiciary
Committee.
AB 1291 (Lowenthal) would create the Right to Know Act of 2013,
repealing and reorganizing certain provisions of existing law
pertaining to the disclosure of a consumer's personal
information. This bill is in the Assembly Judiciary Committee.
Prior Legislation :
SB 632 (Davis, 2009) would have required a social networking
Internet Web site to provide a disclosure to users that an image
which is uploaded onto the Web site is capable of being copied,
without consent, by persons who view the image, or copied in
violation of the privacy policy, terms of use, or other policy
of the site. This bill was vetoed.
SB 1361 (Corbett, 2010) would have prohibited a social
networking Internet Web site, as defined, from displaying, to
the public or other registered users, the home address or
telephone number of a registered user of that Internet Web site
who is under 18 years of age, as provided. This bill failed
passage in the Assembly Arts, Entertainment, Sports, Tourism,
and Internet Media Committee.
SB 242 (Corbett, 2011) would have prohibited a social networking
Internet Web site from displaying the home address or telephone
number, in specified text fields, of a registered user who
identifies himself or herself as under 18 years of age. This
bill failed passage on the Senate Floor.
SB 761 (Lowenthal, 2012) would have required the Attorney
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General, by July 1, 2012, to adopt regulations that would
require online businesses to provide California consumers with a
method for the consumer to opt out of the collection or use of
his or her information by the business. This bill died in the
Senate Appropriations Committee.
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