BILL ANALYSIS �
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UNFINISHED BUSINESS
Bill No: SB 568
Author: Steinberg (D)
Amended: 8/15/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 4/23/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SENATE FLOOR : 37-0, 4/29/13
AYES: Anderson, Beall, Berryhill, Block, Calderon, Cannella,
Corbett, Correa, De Le�n, DeSaulnier, Emmerson, Evans, Fuller,
Gaines, Galgiani, Hancock, Hernandez, Hill, Hueso, Huff,
Jackson, Knight, Lara, Leno, Lieu, Monning, Nielsen, Padilla,
Pavley, Price, Roth, Steinberg, Walters, Wolk, Wright, Wyland,
Yee
NO VOTE RECORDED: Liu, Vacancy, Vacancy
ASSEMBLY FLOOR : 62-12, 8/26/13 - See last page for vote
SUBJECT : Privacy: Internet: minors
SOURCE : Author
DIGEST : This bill 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 knowingly using, disclosing, compiling, or
knowingly allowing a 3rd party to use, disclose, or compile, the
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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. This bill 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.
Assembly Amendments prohibit an operator from knowingly using,
disclosing, compiling, or 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, and make this prohibition applicable to an advertising
service that is notified by an operator of an Internet Web site,
online service, online application, or mobile application that
the site, service, or application is directed to a minor.
Amendments also specify the types of products and services that
this bill's restrictions apply to (e.g. alcoholic beverages,
firearms and ammunition, dietary supplements), and make other
technical and clarifying changes.
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.
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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. 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 site, online service, online application,
or mobile application if the marketing or advertising is
for a product, as defined. An operator is deemed to be
in compliance if he/she takes reasonable actions in good
faith designed to avoid marketing or advertising to
minors, as specified.
B. Knowingly 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:
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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, which is created for the purpose of reaching an
audience that, is primarily comprised of minors, and is
not intended for more general audience comprised of
adults.
Clarifies that an Internet Web site, online service,
online application, or mobile application, or a portion
thereof, 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.
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
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Internet Web site, online service, online application, or
mobile application will 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 will not market or advertise a product or service on
the operator's Internet Web site, online service, online
application, or mobile application that state law expressly
prohibits a minor from purchasing.
6. Details the products and services that the marketing and
advertising restrictions shall apply to.
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 will 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 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
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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 stored on or 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 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.
13.Provides that provisions of this bill are severable.
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
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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 services. (Singer, New Online Privacy Rules for
Children, The New York Times (Dec. 19, 2012)
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ules-for-online-privacy-of-children.html> [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
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 8/29/13)
California Partnership to End Domestic Violence
Children Now
Common Sense Media
Crime Victim United of California
Klass Kids Foundation
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OPPOSITION : (Verified 8/29/13)
The Center for Democracy and Technology
ARGUMENTS IN SUPPORT : Common Sense Media supports this bill
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."
ARGUMENTS IN OPPOSITION : The Center for Democracy and
Technology opposes this bill and writes, "Unfortunately, we
remain concerned that the bill's focus on sites "directed to
minors" under the age of 18 will leave operators of websites,
online services, and applications that are popular with young
adults uncertain of their obligations under the law. As
discussed in our comments to the earlier draft legislation, we
are principally concerned that this legal uncertainty for
website operators will discourage them from developing content
and services tailored to younger users, and will lead popular
sites and services that may appeal to minors to prohibit minors
from using their services. Because of this concern that the bill
will have the unintended consequence of reducing minors' access
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to information and platforms for expression online, CDT must
continue to oppose SB 568."
ASSEMBLY FLOOR : 62-12, 8/26/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Cooley, Daly,
Dickinson, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Hall, Roger
Hern�ndez, Holden, Jones-Sawyer, Levine, Lowenthal,
Maienschein, Medina, Mitchell, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Perea, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Wagner,
Weber, Wieckowski, Williams, Yamada, John A. P�rez
NOES: Allen, Dahle, Donnelly, Grove, Harkey, Jones, Linder,
Logue, Mansoor, Melendez, Morrell, Wilk
NO VOTE RECORDED: Conway, Hagman, Patterson, Waldron, Vacancy,
Vacancy
AL:d 8/29/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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