BILL ANALYSIS Ó
SB 568
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian C. Calderon, Chair
SB 568 (Steinberg) - As Amended: June 20, 2013
SENATE VOTE : 37-0
SUBJECT : Privacy: Internet: minors.
SUMMARY : Prohibits, on and after January 1, 2015, an operator
of an Internet Web site, online service, online application, or
mobile application, as specified, from marketing specified types
of products or services to a minor. Prohibits an operator from
using, disclosing, compiling, or knowingly allowing a 3rd party
to use, disclose, or compile, the personal information of a
minor for the purpose of marketing or advertising specified
types of products or services. This bill also makes this
prohibition applicable to an advertising service, as specified.
Requires, on and after January 1, 2015, the operator of an
Internet Web site, online service, online application, or mobile
application to permit a minor who is a registered user of the
operator's Internet Web site, online service, online
application, or mobile application to remove, or to request and
obtain removal of, content or information publicly posted on the
operator's Internet Web site, service, or application by the
minor, subject to specified conditions and exceptions.
Specifically, this bill :
1)Declares that the 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 has actual
knowledge that a minor is using its Internet Web site, online
service, online application, or mobile application shall not
do any of the following:
a) Market or advertise a product or service on the Internet
Web site, online service, online application, or mobile
application directed to minors, or to a minor who the
operator has actual knowledge is using its Internet Web
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site, online service, online application, or mobile
application if the marketing or advertising is for a
product, as defined.
b) Use, disclose, compile, or knowingly allow a third party
to use, disclose, or compile, the personal information of a
minor for the purpose of marketing or advertising products
or services if the marketing or advertising is for a
product, as defined.
2)Provides the following definitions:
a) "Minor" means a natural person under 18 years of age who
resides in the state.
b) "Internet Web site, online service, online application,
or mobile application directed to minors" means an Internet
Web site, online service, online application, or mobile
application, or a portion thereof, that is created for the
purpose of reaching an audience that is primarily comprised
of minors.
Clarifies that an Internet Web site, online service, online
application, or mobile application, or a portion thereof,
shall not be deemed to be directed at minors solely because
it refers or links to an Internet Web site, online service,
online application, or mobile application directed to
minors by using information location tools, including a
directory, index, reference, pointer, or hypertext link.
c) "Operator" means any person or entity that owns an
Internet Web site, online service, online application, or
mobile application. It does not include any third party
that operates, hosts, or manages, but does not own, an
Internet Web site, online service, online application, or
mobile application on the owner's behalf or processes
information on the owner's behalf.
d) "Posted" means content or information that can be
accessed by a user in addition to the minor who posted the
content or information, whether the user is a registered
user or not, of the Internet Web site, online service,
online application, or mobile application where the content
or information is posted.
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3)Declares that its provisions shall not be construed to require
an operator of an Internet Web site, online service, online
application, or mobile application to collect or retain age
information about users.
4)States that, with respect to marketing or advertising provided
by an advertising service, the operator of an Internet Web
site, online service, online application, or mobile
application shall be deemed to be in compliance if the
operator notifies the advertising service, in the manner
required by the advertising service, that the site, service,
or application is directed to minors.
5)Provides that if an advertising service is notified that an
Internet Web site, online service, online application, or
mobile application is directed to minors the advertising
service shall not market or advertise a product or service on
the operator's Internet Web site, online service, online
application, or mobile application that state or federal law
expressly prohibits a minor from purchasing.
6)Details the products and services that the marketing and
advertising restrictions shall apply to (See Comment 6 below).
7)Further requires that an operator of an Internet Web site,
online service, online application, or mobile application
directed to minors or an 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 shall do all of the following:
a) Permit a minor who is a registered user of the
operator's Internet Web site, online service, online
application, or mobile application to remove, or to request
and obtain removal of, content or information posted on the
operator's Internet Web site, online service, online
application, or mobile application by the user.
b) Provide notice to a minor who is a registered user of
the operator's Internet Web site, online service, online
application, or mobile application that the minor may
remove, or request and obtain removal of, content or
information posted on the operator's Internet Web site,
online service, online application, or mobile application
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by that registered user.
c) Provide clear instructions to a minor who is a
registered user of the operator's Internet Web site, online
service, online application, or mobile application on how
the user may request and obtain the removal of content or
information posted on the operator's Internet Web site,
online service, online application, or mobile application.
d) Provide notice to a minor who is a registered user of
the operator's Internet Web site, online service, online
application, or mobile application that the removal
described under subdivision (b) does not ensure complete or
comprehensive removal of the content or information on the
operator's Internet Web site, online service, online
application, or mobile application by the registered user.
8)Declares that an operator or a third party is not required to
erase or otherwise eliminate, or to enable erasure or
elimination of, content or information in any of the following
circumstances:
a) Any other provision of federal or state law requires the
operator or third party to maintain the content or
information.
b) The content or information was posted to the operator's
Internet Web site, online service, online application, or
mobile application by a third party other than the minor,
who is a registered user, including any content or
information posted by the registered user that was
republished or reposted by the third party.
c) The operator anonymizes the content or information
posted by the minor who is a registered user, so that the
minor who is a registered user cannot be individually
identified.
d) The minor does not follow the instructions provided on
how a registered user may request and obtain the removal of
content or information posted on the operator's Internet
Web site, online service, online application, or mobile
application by that registered user.
e) The minor has received compensation or other
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consideration for providing the content.
9)Provides that its 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.
10)Declares that an operator shall be deemed compliant with this
section if:
a) It renders the content or information posted by the
minor user no longer visible to other users of the service
and the public even if the content or information remains
on the operator's servers in some form.
b) Despite making the original posting by the minor user
invisible, it remains visible because a third party has
copied the posting or reposted the content or information
posted by the minor.
11)Further declares that the provisions of this section shall
not be construed to require an operator or an Internet Web
site, online service, online application, or mobile
application to collect age information about users.
12)Provides that the provisions of the bill become operative on
January 1, 2015.
EXISTING LAW :
1) Provides that, among other rights, all people have an
inalienable right to pursue and obtain privacy. (California
Constitution, Article I, Section 1.)
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:
a) A legally protected privacy interest;
b) A reasonable expectation of privacy in the
circumstances; and
c) Conduct by the defendant that constitutes a serious
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invasion of privacy. (Hill v. National Collegiate Athletic
Association, (1994) 7 Cal.4th 1). 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.
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, (2009) 172 Cal.App.4th 1125.)
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. (15 United
States Code, Section 6502.)
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement :
According to the author, "Because of their still developing
capacity for self-regulation, still developing critical
thinking skills, still developing 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 state and federal public
policy deem are harmful for minors. It is especially
inappropriate for operators to subject children to
advertisements for products those children are legally
barred from purchasing when the operator knows the person
visiting the site at the time the advertisement is displayed
is a minor. It is our responsibility as a state to ensure
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that operators of online sites do not put our children's
safety in jeopardy.
"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. Young
children and teens are still developing their critical
thinking skills and judgment. We see examples in our homes
and in the media of children having a tendency to reveal
before they reflect. Existing state law does nothing to
require that online operators permit minors to remove
content or information they posted on the operator's site.
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. This bill requires operators to permit children to
delete what they post on the operator's website."
2)Argument in Support :
Common Sense Media supports this measure based upon their
belief that, "Children have unprecedented access to digital
content and products, and while this access creates incredible
possibilities, it also brings obvious pitfalls. There are
inherent privacy risks when our personally identifiable
information is indiscriminately posted, indefinitely stored,
and quietly collected and analyzed by marketers and identity
thieves. Those risks are especially serious when it comes to
kids and teens, who are tracked more closely and widely than
adults. This bill adds much-needed online privacy protections
for kids and teens in California, and ensures that they will
be protected from advertising and marketing that promotes
products that are harmful and illegal for children. It is the
height of irresponsibility for sites that cater to minors to
market products that minors cannot legally purchase.
"Additionally, as we live more and more of our lives online,
it is imperative that our kids have the option to erase data
they have shared, posted, or otherwise provided to an online
or mobile company, oftentimes without clear consent or
parental knowledge and guidance. This bill empowers kids,
teens, and their families by providing this important option.
Regardless of the platforms we use, our personal information
belongs to us. It is not a commodity to be controlled and
traded by online and mobile companies."
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Children Now add in further support that this bill will help
protect the personal information of minors by prohibiting site
operators from using, disclosing, or compiling children and
teen's personally identifiable information for purposes of
marketing goods or services that minors can't legally purchase
or participate in. They write the committee to say, "They are
pleased that the bill will also prohibit site operators from
marketing and displaying advertising for those kinds of
products and services to minors since these products have
already been determined to be inappropriate."
3)Background: The Internet, Social Media and Children :
Social networking Internet Web sites such as MySpace and
Facebook have grown in use and become more popular with users
who post messages and photos on a personal web page. Those
personal pages, generated by the social networking Web site,
may also display the user's address, phone number, birth date,
or other personal identifying information. That information
may then be displayed to the user's friends or to the general
public. Although users may limit who may see their personal
information, many users, including those under the age of 18,
often share that information with their "friends". The list
of "friends" for those users may include people who they do
not personally know, resulting in the sharing of personal
identifying information with unknown persons.
Children under the age of 18 are among the most avid users of
the Internet and social networking Internet Web sites. A
report by the Pew Foundation entitled Social Media & Mobile
Internet Use Among Teens and Young Adults (February 2010)
found that 93% of American teens aged 12-17 are online, and
that 73% of these teens use social networking sites. (See
http://www.pewinternet.org/Reports/
2010/Social-Media-and-Young-Adults.aspx, as of April 20,
2013.) A 2005 survey by the Polly Klaas Foundation found that
42% of online teens post information about themselves on the
Internet so others can contact them, and 56% have been asked
personal questions online. (Polly Klass Foundation, Omnibuzz
Research Poll Results,
http://www.pollyklaas.org/internet-safety/internet-pdfs/Polling
Summary.pdf, as of April 20, 2013.) Additionally, 10% of
children aged 8-12 surveyed said they communicate online with
people they don't know. (See id.)
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Many research organizations have found that the sharing of
personal identifying information through social networking
Internet Web sites poses a significant threat to personal
privacy. A 2010 Consumer Reports survey found that, "Many
social network users are naive about risks. Forty percent had
posted their full birth date, exposing them to identity theft.
Twenty-six percent of Facebook users with children had
potentially exposed them to predators by posting the
children's photos and names. And in one of four households
with a Facebook account, users weren't aware of or didn't
choose to use the service's privacy controls." (Consumer
Reports, Social insecurity: What millions of online users
don't know can hurt them,
http://www.consumerreports.org/cro/magazine-archive/2010/june/
electronics-computers/social-insecurity/overview/ index.htm,
as of April 20, 2013.)
Social network users under the age of 18 are particularly at
risk. According to the American Academy of Pediatrics (AAP),
"[T]he main risk to preadolescents and adolescents online
today are risks from each other, risks of improper use of
technology, lack of privacy, sharing too much information, or
posting false information about themselves or others." (AAP,
The Impact of Social Media on Children, Adolescents, and
Families,
http://pediatrics.aappublications.org/content/127/4/800.full,
as of April 20, 2013.) "These types of behavior," according
to the AAP, "put [minors'] privacy at risk." (Id.)
The posting of too much information may be intentional, or in
some cases the result of unfamiliarity with a particular Web
site or confusion about how information will be displayed
across a social network. A study by Columbia University
entitled The Failure of Online Social Network Privacy Settings
found that 93.8% of participants revealed information that
they intended to keep private, and that 84.6% of participants
were hiding information that they actually wanted to share.
(http:// academiccommons. columbia.edu/catalog/ac:135406, as
of April 20, 2013.)
This over-sharing and confusion has contributed to an
environment where 92% of parents are concerned that their
children shared too much information online, and 75% don't
think social networking sites do a good job of protecting
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children's online privacy. (Common Sense Media, Common Sense
Media Poll,
http://www.commonsensemedia.org/sites/default/files/
privacypoll.pdf, as of April 20, 2013.)
4)Federal Children's Online Privacy Protection Act :
In response to Congressional concerns about the safety of
children online, the federal Child's Online Privacy Protection
Act of 1998 (COPPA) was adopted, which 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
COPPA 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.
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"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 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] http://www.nytimes.com ,
Apr. 19, 2013.)
5)SB 568 Has Two Major Provision; a Prohibition Related to
Services or Products That a Minor Cannot Legally Purchase, and
a Requirement to Allow Minors to Remove Content Which They
Have Posted :
a) Prohibition on Marketing or Advertising :
First, this 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
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protection under the First Amendment by the United States
Supreme Court. In order to be upheld as a valid
restriction on commercial speech, the proposed law must
meet the following four-part test:
i) The speech must be about a lawful activity and
cannot be false or misleading;
ii) The government must have a substantial interest;
iii) The law must directly advance the governmental
interest asserted; and
iv) 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.
In addition, 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 goods or services that the minor
cannot legally purchase.
b) Ability For Minors to Remove Content or Information, and
Exceptions :
As of January 1, 2015, this bill would require an operator
of an Internet Web site, online service, online
application, or mobile application to:
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i) Permit a minor to remove content or information they
submitted or posited on the website, service, or
application; and
ii) Provide notice to a minor of his or her ability to
remove content and a notification that removal does not
ensure complete or comprehensive removal of content or
information.
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:
i) Any other provision of federal or state law requires
the operator or third party to maintain the information;
or
iii) 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.
6) Recent Amendments Provide a Listing of Products Which May
Not be Marketed to Minors :
The author has recently amended the bill to clarify the scope
of products and activities which may not be marketed to
children. The list is as follows:
a) Alcoholic beverages, as referenced in Business and
Professions Code Sections 23003-23009, and 25658.
b) Firearms or handguns, as referenced in Penal Code
Sections 16520, 16640, and 27505.
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c) Ammunition or reloaded ammunition, as referenced in
Penal Code Sections 16150 and 30300.
d) Handgun safety certificates, as referenced in Penal Code
Sections 31625 and 31655.
e) Aerosol container of paint that is capable of defacing
property, as referenced in Penal Code Section 594.1.
f) Etching cream that is capable of defacing property, as
referenced in Penal Code Section 594.1.
g) Any tobacco, cigarette, or cigarette papers, or blunts
wraps, or any other preparation of tobacco, or any other
instrument or paraphernalia that is designed for the
smoking or ingestion of tobacco, products prepared from
tobacco, or any controlled substance, as referenced in
Penal Code Sections 308, 308.1, 308.2, 308.3, and Business
and Professions Code Sections 22950-22963.
h) BB device, as referenced in Penal Code Sections 16250
and 19910.
i) Dangerous fireworks, as referenced in Health and Safety
Code Sections 12505 and 12689.
j) Tanning in an ultraviolet tanning device, as referenced
in Business and Professions Code Sections 22702 and 22706.
aa) Dietary supplement products containing ephedrine group
alkaloids, as referenced in Health and Safety Code Section
110423.2.
bb) Tickets or shares in lottery games, as referenced in
Government Code Sections 8880.12 and 8880.52.
cc) Salvia divinorum or Salvinorin A, or any substance or
material containing Salvia divinorum or Salvinorin A, as
referenced in Penal Code Section 379.
dd) Body piercing, as referenced in Penal Code Section 652
and Health and Safety Code Section 119302.
ee) Body branding, as referenced in Health and Safety Code
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Section 119301 and 119302.
ff) Permanent tattoo, as referenced in Penal Code Section
653 and Health and Safety Code Sections 119301 and 119302.
gg) Drug paraphernalia, as referenced in Health and Safety
Code Section 11364.5.
hh) Electronic cigarette, as referenced in Health and Safety
Code Section 119405.
ii) Harmful matter or obscene matter, as referenced in Penal
Code Sections 311, 313, and 313.1.
jj) Laser pointer, as referenced in Penal Code Sections
417.25 and 417.27.
aaa) A less lethal weapon, as referenced in Penal Code
Sections 16780 and 19405.
7) Prior and Related Legislation :
a) 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. Status: SB 501 is currently
pending before this committee.
b) 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. Status: Assembly Judiciary
Committee.
c) AB 632 (Davis) of the 2009-10 Legislative Session, 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. AB 632 was vetoed.
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d) SB 1361 (Corbett) of the 2009-10 Legislative Session,
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. SB 1361 failed passage in this
committee.
e) SB 242 (Corbett) of the 2011-12 Legislative Session,
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. SB 242 failed
passage on the Senate Floor.
f) SB 761 (Lowenthal) of the 2011-12 Legislative Session,
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. SB 761 was returned to the
Secretary of the Senate by the Senate Appropriations
Committee pursuant to
Joint Rule 56.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence
Children Now
Common Sense Media
Crime Victims United of California
Opposition
None on file
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450
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