BILL ANALYSIS Ó
SB 568
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Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 568 (Steinberg) - As Amended: August 5, 2013
As Proposed to be Amended
SENATE VOTE : 37-0
SUBJECT : Privacy: Internet: Minors
KEY ISSUES :
1)Should the operator of an Internet Website or online service
be prohibited from marketing or advertising products or
services to a minor under the AGe of 18, if the minor could
not legally purchase those products or services?
2)Should AN operator be required, upon request of a minor, to
remove or make anonymous content or information that the minor
has posted on the operator's website or service?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This author-sponsored bill responds to the pervasive use of the
Internet, online services, and mobile applications by minors.
It seeks to protect minors in two ways. First, the bill would
prohibit the operators of Internet Web sites, online services,
or applications that are directed at minors from marketing or
advertising products that minors cannot legally purchase, such
as alcohol and tobacco products. On line operators that target
a more general adult audience would be prohibited from sending
such advertisements if they had actual knowledge that the user
is a minor. Second, this measure would permit a minor to remove
information that has been publicly posted on the operator's
site, service, or application, reflecting the author's belief
that the immaturity of minors may cause them to sometimes
unwisely post material without fully reflecting on potential
consequences. State law generally does not prohibit the kind of
information that Web sites, online services, and applications
can collect and share; rather it only requires very general
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disclosure of those policies. A user's right to opt-out of data
collection and sharing, to block advertising, or to remove
content is generally dictated by the operator's unilateral
"terms and conditions." This bill, by contrast, would require
that operators refrain from sending certain kinds of
advertisements to minors and allow minors to remove (or at least
hide or make anonymous) content that the minor has posted.
Federal law requires the operator of a service directed to
children under the age of 13 to give notice of the kinds of
information that is collected and how it is used, and it gives
parents the opportunity to opt-out of future collection of their
child's information. The Center for Democracy & Technology
opposes this bill on First Amendment grounds and because, CDT
asserts, it will have various unwanted and unintended
consequences.
SUMMARY : Prohibits, as of January 1, 2015, the operator of
Internet website or online service, online application, or
mobile application from marketing certain kinds of products or
services to a minor, and permits a minor to remove posted
personal information, as specified. Specifically, this bill :
1)Prohibits the operator of an Internet Web site, online
service, online application, or mobile application that is
directed to minors from marketing or advertising specified
products or services on its Internet Web site, online service,
online application, or mobile application. If marketing or
advertising is provided by an advertising service, the
operator shall notify the advertising service that the site,
service, or application is directed to minors, and the
advertising service shall be prohibited from marketing or
advertising the specified products or services.
2)Prohibits the operator of an Internet Web site, online
service, or application from marketing or advertising
specified products or services to a minor if the operator has
actual knowledge that a minor is using the operator's Web
site, service, or application and the marketing or advertising
is specifically directed to that minor based on information
specific to that minor. Provides that an operator shall be
deemed in compliance with this provision if the operator takes
reasonable actions in good faith to avoid marketing or
advertising the specified products or services.
3)Prohibits an operator of an Internet Web site, online service,
or application directed to minors or who has actual knowledge
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that a minor is using the operator's site, service, or
application from using, disclosing, compiling, or allowing a
third party to use, disclose, or compile, the personal
information of a minor with actual knowledge that such use,
disclosure or compilation is for the purpose of marketing or
advertising specified products or services.
4)Applies the above restrictions to the following products and
services, which existing law prohibits a minor from
purchasing: alcoholic beverages; firearms, handguns, or
ammunition; handgun safety certificates; aerosol paints or
etching creams that are capable of defacing property; tobacco
products or controlled substances; BB devices; ultraviolet
tanning devices; dietary supplements containing ephedrine;
lottery tickets; salvia divinorum or Salvinorin A, or products
containing the same; body branding; permanent tattoo; drug
paraphernalia; electronic cigarettes; obscene matter; a less
lethal weapon, as defined.
5)Specifies that the above restrictions shall not apply to
incidental placement of products or services embedded in
content if the content is not created primarily for the
purpose of marketing and advertising of the restricted
services and products.
6)Provides that nothing in this bill shall be construed to
require an operator of an Internet Web site, online service,
or application to collect or retain information about users.
7)Uses the following definitions for purposes of the provisions
of this bill:
a) "Minor" means a natural person less than 18 years of age
who resides in the state.
b) "Internet Web site, online service, online application,
or mobile application directed to minors" means a site,
service, or application that is created for the purpose of
reaching an audience that is predominantly composed of
minors, and is not intended for a more general audience
comprised of adults. However, a site, service, or
application shall not be deemed to be directed to minors
solely because it refers or links to a site, service, or
application directed to minors.
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c) "Marketing or advertising" means, in exchange for
monetary compensation, to make a communication to one or
more individuals, or to arrange for the dissemination to
the public of a communication, about a product or service
the primary purpose of which is to encourage recipients of
the communication to purchase or use the product or
service.
d) "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.
8)Requires an operator of a Web site, online service or
application directed to minors, or an operator that has actual
knowledge that a minor is using the site, service, or
application, to permit a minor who is a registered user to
remove content or information that the minor has posted, or to
request that operator remove or anonymize the information.
Specifies that the minor be notified of his or her right to
request removal and that the notice contain clear instructions
on how to do so. Provides that an operator would not be
required to erase or eliminate information that was stored on
or posted by a party other than the minor or if the operator
is required by state or federal law to maintain the
information.
9)Defines "posted" for purposes of the above provision to mean
content or information that can be accessed by a user in
addition to the minor who posted the content or information,
whether or not the user is a registered user of the site,
service, or application.
EXISTING LAW :
1)Requires an operator of a commercial Web site or online
service that collects personally identifiable information
through the Internet about individual consumers residing in
California to post a privacy policy, as specified. (Business
& Professions Code Sections 22575-22579.)
2)Requires a business that collects personal information about a
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California consumer and shares that information with a third
party for marketing purposes to disclose, upon a consumer's
written request, the categories of information that were
disclosed to a third party for the third party's direct
marketing purposes and the names and addresses of all third
parties that received the information. Alternatively, a
business may comply with this requirement by adopting a policy
that allows a customer to prevent the disclosure of personal
information to a third party for the third party's direct
marketing purposes, and the business notifies the customer of
his or her right to prevent disclosure under the policy and
provides the user with a cost-free means of exercising that
right. (Civil Code Section 1798.83.)
3)Requires, under federal law, an operator of an Internet Web
site or online service directed to a child that is less than
13 years old, or an operator that has actual knowledge that it
is collecting personal information from a child that is less
than 13 years old, 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 USC Sections 6501-6506.)
COMMENTS : Statistics cited by the author confirm what has
become common knowledge: teen use of social networking and
other online services, including the now pervasive "mobile
apps," has expanded greatly in recent years. Moreover, the
author believes that a minor's lack of maturity might make him
or her more susceptible to aggressive marketing and more likely
to post personal information online without always thinking
about the consequences of doing so. Marketers are apparently
aware that children and teens are avid consumers and susceptible
to persuasion. For example, a Wall Street Journal investigation
found that 4,123 "cookies" and other tracking devices were
placed on a test computer that was used to visit the top 50
websites for children and teens, which was about 30% more than
were placed on a test computer that visited sites that targeted
a general audience. (See "On the Web, Children Face Intensive
Tracking," Wall Street Journal, September 17, 2010.)
The laudable goal of this bill, therefore, is to provide greater
protection to minors when they visit Internet Web sites or use
online or mobile services. An existing federal law known as the
Children's Online Privacy Protection Act (COPPA) already
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provides some, albeit limited, protections to children under
thirteen. For example, under COPPA the operator of a Web site
or online service that targets children under thirteen must
disclose the kinds of information that it collects and what it
does with that information. COPPA also allows parents to
opt-out of collection of the children's personal information.
This bill differs from federal law in a number of ways. To
begin with, this bill defines "minor" to include any user under
the age of eighteen, whereas COPPA applies to users under the
age of thirteen. Unlike COPPA, this bill would not affect the
kinds of information that a Web site, online service, or
application could collect, though it would effectively limit the
use of such information for some marketing purposes; nor would
this bill allow a parent to opt-out of collection on the child's
behalf. Instead, this bill would add two new protections that
both complement and go beyond federal protections:
First, this measure will give minors the opportunity, subject to
certain exceptions, to remove information that they have posted
or stored on a Web site, online service, or application. There
is no such opportunity under COPPA. It should be noted,
however, that "removal" will not necessarily mean to literally
"remove" by deletion or erasure. Rather, an operator can comply
with a "removal" request by hiding the posting so that no other
users can see or access it, or by otherwise making the posting
anonymous.
Second, the bill would prohibit the operator of the Web site,
online service, or application from targeting minors with
advertisements for goods and services that they cannot legally
purchase. Of course, the operator of the Web site, service, or
application cannot always know the age of the user; therefore,
this bill would only apply to operators of Web sites, services,
or applications that are "directed to minors," or to operators
that have actual knowledge that a user is a minor, whether or
not the site, service, or application specifically targets
minors. In other words, the operator of a service that targets
minors must comply with the provisions of this bill even though
some of its users may be adults; conversely, the operator of a
service directed to a general audience, but one which minors
might still use, would not be required to comply with the law
unless the operator had "actual knowledge" that the user was a
minor.
When is a Web Site "Directed to Minors ? One of the points
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raised by the bill's opponents, and other concerned parties,
concerns the potential vagueness of the term "directed to
minors." As most recently amended, the definitional section of
the bill suggests that a site or service is "directed to minors"
if it is "created for the purpose of reaching an audience that
is predominantly composed of minors, and is not intended for a
more general audience comprised of adults." [Emphasis added.]
The definition adds that a site or service would not be deemed
to be "directed at minors" merely because it contained links to
sites or services that were directed to minors.
Few would likely disagree that the Sesame Street Web site
( www.sesamestreet.org ) is directed to minors, and very young
ones at that, since it consists of interactive, educational
games for pre-school children. Under this bill, it seems to
safe to say, that this would be a website that is
"predominantly" designed for minors, even though adults may
visit the site - whether to monitor what it offers to their
children or if they secretly enjoy playing "Elmo the Musical
Cowboy."
But as one moves away from more obvious children's content and
up the age scale, it may become more difficult to determine if a
site or service is "predominantly" directed to minors or if it
is directed to young adults more generally. For example, a
search for "websites for teens" retrieves, among other things, a
website called "12 Awesome Websites for Teens." Among the
"awesome" websites is "Teens for Planet Earth," which describes
itself as a "social networking site for teenagers who want to
get involved in protecting our planet. They can connect with
other green-minded teens, choose a project or create their own
and really make a difference." ( www.teensforplanetearth.org )
This Web site too, given that it appears to be targeted to high
school students, would likely be deemed predominantly directed
to minors, even though 18 and 19 year-old teens might have an
interest in protecting their planet as well. Other sites and
services, however, such as ones that appeal to fans of youthful
entertainers or pop musicians, are not as clearly "directed to
minors," even though one might reasonably suspect that many if
not most of their users are minors. If that were the case, then
presumably under this bill such a site would not be considered a
website directed to minors, and the website would only be
required to restrict its advertising in accordance with this
bill if it had actual knowledge that a user is a minor.
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Practical Impact of "Actual Knowledge" Component of Bill : With
the exception of those websites that are indisputably "directed
to minors," it is difficult to assess the practical impact of
this bill, in part because it will be difficult for a Web site
or online service to have "actual knowledge" of a user's age
unless the minor has already submitted that information to the
operator and the operator knows that the minor, and not someone
else in the household, has logged onto the computer. For
example, there is much disagreement about the practical effect
of COPPA and the ability of Internet Web sites and online
services to police even their own age policies. For example,
Facebook requires that its users be at least thirteen years old
- partly, perhaps, to avoid having to comply with COPPA - but it
is well-documented that children quickly learn to circumvent
this by entering a false birth date; indeed, one study suggests
that about 10% of parents freely admit that they helped their
children set up those deceptive and unauthorized accounts. On
the other side, just as the user may be dishonest about his or
her age, the operator may have an interest in not acquiring
actual knowledge of the user's age. Indeed, the bill expressly
states that the operator has no obligation to inquire into the
age of the user, and it specifies that an operator will be
deemed to be in compliance so long as it "takes reasonable
actions in good faith" to avoid marketing prohibited goods, even
when the operator has actual knowledge that the user is a minor.
However, it is most likely impossible to craft legislation that
can entirely eliminate the possibility of circumvention, whether
on the part of the user or the operator, and this bill appears
to be a good start at this objective.
ARGUMENTS IN SUPPORT : Common Sense Media (CSM) supports this
bill because it would "significantly improve the digital and
online space for minors in California by outlawing the
collection of personal information for the purpose of marketing
age-restricted and illegal products. Additionally, it would add
a critical 'eraser button' for kids and teens to more easily
remove content or information that they have submitted to
websites." CSM argues that while teen access to digital content
has definite advantages, it also creates "inherent privacy
risks" when personal information is indiscriminately posted or
stored. CSM notes that this danger is especially an issue for
minors, not only because of their lack of maturity, but also
because research suggests that advertisers track minors to a
much greater extent than they track adults. CSM concludes that
this bill will be "a crucial step forward in ensuring that the
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online privacy rights of California minors are respected, and
that our young people are protected from inappropriate
advertising online and on mobile phones."
The California Partnership to End Domestic Violence (CPEDV) also
supports this bill as a necessary tool for protecting minors
from advertising for inappropriate products, but it also
suggests that the ability to erase potentially harmful or
embarrassing content may help to reduce incidents of the teen
dating violence and harassment that "often intersects with the
digital world . . . Technology is often used as a tool of abuse,
particularly for teens. This can include malicious posts on
social media or posting private or embarrassing photos or
information. SB 568 provides another tool teens can use to
protect their privacy."
ARGUMENTS IN OPPOSITION : The Center for Democracy and
Technology (CDT) opposes this bill because of "its potential
burden on minors' own First Amendment rights." CDT believes
that the bill's application to websites and services that are
"directed to minors" is unconstitutionally vague, and as such it
will ultimately lead operators to restrict many marketing and
advertising materials to both minors and young adults, even
young adults who are not minors. CDT believes that "when faced
with the obligations to treat minors differently . . . many
operators [who are] unsure of their status under this bill will
opt to bar minors from their sites and services altogether."
CDT believes that, whether intended to or not, this bill will
"restrict minors' access to constitutionally protected material,
limit their opportunities for speech, and discourage development
of content designed for younger audiences." CDT contends - and
cites case law in support of this contention - that minors have
as much right to receive constitutionally protected material as
do adults, "and only in relatively narrow and well-defined
circumstances may government bar public dissemination of
protected materials to them." (Quoting Erznoznik v.
Jacksonville (1975) 422 U.S. 205, 212-213.)
In addition to these constitutional concerns, CDT also opposes
this bill because of practical problems of implementation and
unintended consequences. For example, CDT contends that this
bill will only encourage minors to lie about their age when
logging into or signing up for online services, which in turn
will circumvent "efforts by operators to tailor content controls
for different age groups." CDT also points out that federal
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COPPA law applies to children under the age of 13, not all
minors under 18. CDT believes that this difference is critical,
claiming that COPPA "works, to the extent that it does, because
it is relatively easy to identify content intended for young
children," as opposed to content designed for a general audience
that includes young adults and older minors. While the
language, themes, and images associated with children's material
is readily recognized as such, CDT contends that it is much more
difficult to draw a line between the interests of a 16 to17 year
old and a young adult.
Recent Amendments Address Some But Probably Not all Opposition
Concerns : Some, but certainly not all, of CDT's opposition
might be addressed by recent amendments. For example, recent
amendments to the definition of a service "directed to minors"
clarify that the bill's requirements will only apply to a Web
site that is directed "predominantly" to minors, and the bill
now expressly exempts Web sites and services designed "for a
more general audience comprised of adults." Similarly, CDT's
concern that operators will be forced to seek more information
to verify a user's age is potentially addressed by an amendment
that expressly states that nothing in the bill shall be
construed to require an operator to collect age information
about users. Finally, one of CDT's principle objections appears
to be that this bill should follow COPPA in defining a "minor"
as a person under the age of thirteen. However, the author is
primarily concerned with the teens that most frequently use the
Internet and social media services, and studies suggest that
they are between the ages of thirteen and seventeen.
PROPSOSED AUTHOR AMENDMENTS : The author wishes to take the
following clarifying and substantive amendments in this
Committee to address concerns raised by various stakeholders
who, while not opposed to the bill per se, but have raised
concerns. With these amendments, all opposition has apparently
been removed except that of the Center for Democracy
&Technology.
- On page 2, line 14, strike out the second "application," and
on page 3, line 3, strike out "shall" and insert: application:
(1) Shall
- On page 3 between lines 12 and 13 insert: (2) Shall be deemed
in compliance with paragraph (1) if the operator takes
reasonable actions in good faith designed to avoid marketing
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or advertising under circumstances prohibited under paragraph
(1).
- On page 3, line 28, strike out "if the marketing or
advertising is" and insert: to that minor
- On page 6, line 17, strike out "created" and insert:
distributed by or at the direction of the operator
- On page 6, line 18, after "in" insert: subdivision
- On page 6 between lines 18 and 19, insert: (k) "Marketing or
advertising" means, in exchange for monetary compensation, to
make a communication to one or more individuals, or to arrange
for the dissemination to the public of a communication, about
a product or service the primary purpose of which is to
encourage recipients of the communication to purchase or use
the product or service.
- On page 7, line 15, after "was" insert: stored on or
- On page 7, line 19, after "was" insert: stored,
- On page 7, line 19, after "republished" insert a comma
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence
Children Now
Common Sense Media
Opposition
Center for Democracy & Technology
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
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