BILL ANALYSIS �
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THIRD READING
Bill No: SB 568
Author: Steinberg (D)
Amended: 4/1/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 4/23/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SUBJECT : Privacy: Internet: minors
SOURCE : Author
DIGEST : This bill (1) prohibits 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; (2) prohibits 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 or engage in the State of California;
(3) requires on January 1, 2015, 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, unless the content or information was
submitted or posted by a third-party or any other provision of
state or federal law requires the operator or third-party to
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maintain the content or information; and (4) requires the
operator to provide notice to a minor that the minor may remove
the content or information, as specified.
ANALYSIS :
Existing law:
1. Provides that, among other rights, all people have an
inalienable right to pursue and obtain privacy.
2. 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.) Recognizes four
types of activities considered to be an invasion of privacy,
giving rise to civil liability including the public
disclosure of private facts.
3. 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.)
4. Requires an operator of an Internet Web site or online
service directed to a child, as defined, or an 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.
This bill:
1 Prohibits 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
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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.
2. As of January 1, 2015, requires 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.
3. As of January 1, 2015, provides 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
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information; or
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.
4. Provides 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.
5. Defines "minor" as a natural person under 18 years of age.
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:
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:
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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 services. (Singer, New Online Privacy Rules for
Children, The New York Times (Dec. 19, 2012)
[as of Apr. 19,
2013].)
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. The 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
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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
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/25/13)
California Partnership to End Domestic Violence
Child Abuse Prevention Center
Children Now
Common Sense Media
Crime Victim United of California
ARGUMENTS IN SUPPORT : According to the author, "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."
AL:d 4/26/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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