BILL NUMBER: AB 1541 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Privacy and Consumer Protection
(Assembly Members Gatto (Chair), Baker, Chau, Cooper, Dahle, and
Gordon)
MARCH 26, 2015
An act to amend Sections 22580, 22581, and 22584 of the Business
and Professions Code and to amend Section 1798.81.5 of the Civil
Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
AB 1541, as introduced, Committee on Privacy and Consumer
Protection. Privacy: personal information.
Existing law limits marketing to minors by an operator of an
Internet Web site, online service, online application, or mobile
application, as specified. Existing law requires the operator of an
Internet Web site, online service, online application, or mobile
application to permit a minor to remove, or to request and obtain
removal of, content or information posted by the minor, as specified.
Existing law prohibits an operator of an Internet Web site, online
service, online application, or mobile application used primarily for
school purposes from using a student's information, as specified.
This bill would revise these provisions to specify that these laws
pertain to an operator of an Internet Web site or online service,
such as an online application or a mobile application.
Existing law requires a business that owns, licenses, or maintains
personal information about a California resident to implement and
maintain reasonable security procedures and practices appropriate to
the nature of the information, to protect the personal information
from unauthorized access, destruction, use, modification, or
disclosure. Existing law defines terms for purposes of this law,
including "personal information."
This bill would update the definition of personal information to
include health insurance information, as defined, and a username or
email address combined with a password or security question and
answer for access to an online account.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22580 of the Business and Professions Code is
amended to read:
22580. (a) An operator of an Internet Web site, online
service, online application, or mobile application
site or online service, such as an online application or a mobile
application, directed to minors shall not market or advertise a
product or service described in subdivision (i) on its Internet Web
site, online service, online application, or mobile
application site or online service, such as an online
application or a mobile application, directed to minors.
(b) An operator of an Internet Web site, online service,
online application, or mobile application site or
online service, such as an online application or a mobile application
:
(1) Shall not market or advertise a product or service described
in subdivision (i) to a minor who the operator has actual knowledge
is using its Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a mobile application,
and is a minor, if the marketing or advertising is specifically
directed to that minor based upon information specific to that minor,
including, but not limited to, the minor's profile, activity,
address, or location sufficient to establish contact with a minor,
and excluding Internet Protocol (IP) address and product
identification numbers for the operation of a service.
(2) Shall be deemed to be in compliance with paragraph (1) if the
operator takes reasonable actions in good faith designed to avoid
marketing or advertising under circumstances prohibited under
paragraph (1).
(c) An operator of an Internet Web site, online service,
online application, or mobile application site or
online service, such as an online application or a mobile
application, directed to minors or who has actual knowledge
that a minor is using its Internet Web site, online service,
online application, or mobile application, site or
online service, such as an online application or a mobile
application, shall not knowingly use, disclose, compile, or
allow a third party to use, disclose, or compile, the personal
information of a minor with actual knowledge that the use,
disclosure, or compilation is for the purpose of marketing or
advertising products or services to that minor for a product
described in subdivision (i).
(d) "Minor" means a natural person under 18 years of age who
resides in the state.
(e) "Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a mobile application,
directed to minors" mean an Internet Web site, online
service, online application, or mobile application,
site or online service, such as an online application or a mobile
application, or a portion thereof, that is created for the
purpose of reaching an audience that is predominately comprised of
minors, and is not intended for a more general audience comprised of
adults. Provided, however, that an Internet Web site, online
service, online application, or mobile application,
site or online service, such as an online application or a 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 site or online service, such as an
online application or a mobile application, directed to minors
by using information location tools, including a directory, index,
reference, pointer, or hypertext link.
(f) "Operator" means any person or entity that owns an Internet
Web site, online service, online application, or mobile
application site or online service, such as an online
application or a 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 site or online service, such as an
online application or a mobile application, on the owner's
behalf or processes information on the owner's behalf.
(g) This section shall not be construed to require an operator of
an Internet Web site, online service, online application, or
mobile application site or online service, such as an
online application or a mobile application, to collect or
retain age information about users.
(h) (1) 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
site or online service, such as an online application or a
mobile application, directed to minors shall be deemed to be in
compliance with subdivision (a) 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.
(2) If an advertising service is notified, in the manner required
by the advertising service, that an Internet Web site,
online service, online application, or mobile application
site or online service, such as an online application or a
mobile application, is directed to minors pursuant to paragraph
(1), 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
site or online service, such as an online application or a mobile
application, that is described in subdivision (i).
(i) The marketing and advertising restrictions described in
subdivisions (a) and (b) shall apply to the following products and
services as they are defined under state law:
(1) Alcoholic beverages, as referenced in Sections 23003 to 23009,
inclusive, and Section 25658.
(2) Firearms or handguns, as referenced in Sections 16520, 16640,
and 27505 of the Penal Code.
(3) Ammunition or reloaded ammunition, as referenced in Sections
16150 and 30300 of the Penal Code.
(4) Handgun safety certificates, as referenced in Sections 31625
and 31655 of the Penal Code.
(5) Aerosol container of paint that is capable of defacing
property, as referenced in Section 594.1 of the Penal Code.
(6) Etching cream that is capable of defacing property, as
referenced in Section 594.1 of the Penal Code.
(7) Any tobacco, cigarette, or cigarette papers, or blunt 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 Division 8.5 (commencing with Section 22950) and
Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(8) BB device, as referenced in Sections 16250 and 19910 of the
Penal Code.
(9) Dangerous fireworks, as referenced in Sections 12505 and 12689
of the Health and Safety Code.
(10) Tanning in an ultraviolet tanning device, as referenced in
Sections 22702 and 22706.
(11) Dietary supplement products containing ephedrine group
alkaloids, as referenced in Section 110423.2 of the Health and Safety
Code.
(12) Tickets or shares in a lottery game, as referenced in
Sections 8880.12 and 8880.52 of the Government Code.
(13) Salvia divinorum or Salvinorin A, or any substance or
material containing Salvia divinorum or Salvinorin A, as referenced
in Section 379 of the Penal Code.
(14) Body branding, as referenced in Sections 119301 and 119302 of
the Health and Safety Code.
(15) Permanent tattoo, as referenced in Sections 119301 and 119302
of the Health and Safety Code and Section 653 of the Penal Code.
(16) Drug paraphernalia, as referenced in Section 11364.5 of the
Health and Safety Code.
(17) Electronic cigarette, as referenced in Section 119405 of the
Health and Safety Code.
(18) Obscene matter, as referenced in Section 311 of the Penal
Code.
(19) A less lethal weapon, as referenced in Sections 16780 and
19405 of the Penal Code.
(j) The marketing and advertising restrictions described in
subdivisions (a), (b), and (c) shall not apply to the incidental
placement of products or services embedded in content if the content
is not distributed by or at the direction of the operator primarily
for the purposes of marketing and advertising of the products or
services described in subdivision (i).
(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.
SEC. 2. Section 22581 of the Business and Professions Code is
amended to read:
22581. (a) An operator of an Internet Web site, online
service, online application, or mobile application
site or online service, such as an online application or a mobile
application, directed to minors or an operator of an Internet
Web site, online service, online application, or mobile
application site or online service, such as an online
application or a mobile application, that has actual knowledge
that a minor is using its Internet Web site, online service,
online application, or mobile application site or
online service, such as an online application or a mobile
application, shall do all of the following:
(1) Permit a minor who is a registered user of the operator's
Internet Web site, online service, online application, or
mobile application site or online service, such as an
online application or a mobile application, to remove or, if
the operator prefers, to request and obtain removal of, content or
information posted on the operator's Internet Web site,
online service, online application, or mobile application
site or online service, such as an online application
or a mobile application, by the user.
(2) Provide notice to a minor who is a registered user of the
operator's Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a mobile application,
that the minor may remove or, if the operator prefers, request and
obtain removal of, content or information posted on the operator's
Internet Web site, online service, online application, or
mobile application site or online service, such as an
online application or a mobile application, by the
registered user.
(3) 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 site or online
service, such as an online application or a mobile application,
on how the user may remove or, if the operator prefers, request and
obtain the removal of content or information posted on the operator's
Internet Web site, online service, online application, or
mobile application site or online service, such as an
online application or a mobile application .
(4) Provide notice to a minor who is a registered user of the
operator's Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a mobile application,
that the removal described under paragraph (1) does not ensure
complete or comprehensive removal of the content or information
posted on the operator's Internet Web site, online service,
online application, or mobile application site or
online service, such as an online application or a mobile
application, by the registered user.
(b) 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:
(1) Any other provision of federal or state law requires the
operator or third party to maintain the content or information.
(2) The content or information was stored on or posted to the
operator's Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a 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 stored, republished, or reposted by the third party.
(3) 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.
(4) The minor does not follow the instructions provided to the
minor pursuant to paragraph (3) of subdivision (a) on how the
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
site or online service, such as an online application or a
mobile application, by the registered user.
(5) The minor has received compensation or other consideration for
providing the content.
(c) This section 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.
(d) An operator shall be deemed compliant with this section if:
(1) 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.
(2) 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.
(e) This section shall not be construed to require an operator of
an Internet Web site, online service, online application, or
mobile application site or online service, such as an
onli ne application or a mobile application, to
collect age information about users.
(f) "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 site or online service, such as an
online application or a mobile application, where the content
or information is posted.
SEC. 3. Section 22584 of the Business and Professions Code is
amended to read:
22584. (a) For the purposes of this section, "operator" means the
operator of an Internet Web site, online service, online
application, or mobile application site or online
service, such as an online application or a mobile application,
with actual knowledge that the site, service, or
application Internet Web site or online service, such
as an online application or a mobile application, is used
primarily for K-12 school purposes and was designed and marketed for
K-12 school purposes.
(b) An operator shall not knowingly engage in any of the following
activities with respect to their site, service, or
application Internet Web site or online service, such
as an online application or a mobile application :
(1) (A) Engage in targeted advertising on the operator's
site, service, or application, Internet Web site or
online service, such as an online application or a mobile
application, or (B) target advertising on any other
site, service, or application Internet Web site or
online service, such as an online appl ication or a mobile
application, when the targeting of the advertising is based
upon any information, including covered information and persistent
unique identifiers, that the operator has acquired because of the use
of that operator's site, service, or application
Internet Web site or online service, such as an online
application or a mobile application, described in subdivision
(a).
(2) Use information, including persistent unique identifiers,
created or gathered by the operator's site, service, or
application, Internet Web site or online service, such
as an online application or a mobile application, to amass a
profile about a K-12 student except in furtherance of K-12 school
purposes.
(3) Sell a student's information, including covered information.
This prohibition does not apply to the purchase, merger, or other
type of acquisition of an operator by another entity, provided that
the operator or successor entity continues to be subject to the
provisions of this section with respect to previously acquired
student information.
(4) Disclose covered information unless the disclosure is made:
(A) In furtherance of the K-12 purpose of the site,
service, or application, Internet Web site or online
service, such as an online application or a mobile application,
provided the recipient of the covered information disclosed pursuant
to this subparagraph:
(i) Shall not further disclose the information unless done to
allow or improve operability and functionality within that student's
classroom or school; and
(ii) Is legally required to comply with subdivision (d);
(B) To ensure legal and regulatory compliance;
(C) To respond to or participate in judicial process;
(D) To protect the safety of users or others or security of the
site; or
(E) To a service provider, provided the operator contractually (i)
prohibits the service provider from using any covered information
for any purpose other than providing the contracted service to, or on
behalf of, the operator, (ii) prohibits the service provider from
disclosing any covered information provided by the operator with
subsequent third parties, and (iii) requires the service provider to
implement and maintain reasonable security procedures and practices
as provided in subdivision (d).
(c) Nothing in subdivision (b) shall be construed to prohibit the
operator's use of information for maintaining, developing,
supporting, improving, or diagnosing the operator's site,
service, or application Internet Web site or online
service, such as an online application or a mobile application
.
(d) An operator shall:
(1) Implement and maintain reasonable security procedures and
practices appropriate to the nature of the covered information, and
protect that information from unauthorized access, destruction, use,
modification, or disclosure.
(2) Delete a student's covered information if the school or
district requests deletion of data under the control of the school or
district.
(e) Notwithstanding paragraph (4) of subdivision (b), an operator
may disclose covered information of a student, as long as paragraphs
(1) to (3), inclusive, of subdivision (b) are not violated, under the
following circumstances:
(1) If other provisions of federal or state law require the
operator to disclose the information, and the operator complies with
the requirements of federal and state law in protecting and
disclosing that information.
(2) For legitimate research purposes: (A) as required by state or
federal law and subject to the restrictions under applicable state
and federal law or (B) as allowed by state or federal law and under
the direction of a school, school district, or state department of
education, if no covered information is used for any purpose in
furtherance of advertising or to amass a profile on the student for
purposes other than K-12 school purposes.
(3) To a state or local educational agency, including schools and
school districts, for K-12 school purposes, as permitted by state or
federal law.
(f) Nothing in this section prohibits an operator from using
deidentified student covered information as follows:
(1) Within the operator's site, service, or application
Internet Web site or online service, such as an online
application or a mobile application, or other sites,
services, or applications Internet Web sites or online
services, such as online applic ations or mobile
applications, owned by the operator to improve educational
products.
(2) To demonstrate the effectiveness of the operator's products or
services, including in their marketing.
(g) Nothing in this section prohibits an operator from sharing
aggregated deidentified student covered information for the
development and improvement of educational sites, services,
or applications Internet Web Sites or online services,
such as online applications or mobile applications
.
(h) "Online service" includes includes,
but is not limited to, cloud computing services, which must
comply with this section if they otherwise meet the definition of an
operator.
(i) "Covered information" means personally identifiable
information or materials, in any media or format that meets any of
the following:
(1) Is created or provided by a student, or the student's parent
or legal guardian, to an operator in the course of the student's,
parent's, or legal guardian's use of the operator's site,
service, or application Internet Web site or online
service, such as an online application or a mobile application,
for K-12 school purposes.
(2) Is created or provided by an employee or agent of the K-12
school, school district, local education agency, or county office of
education, to an operator.
(3) Is gathered by an operator through the operation of a
site, service, or application an Internet Web site or
online service, such as an online application or a mobile
application, described in subdivision (a) and is descriptive of
a student or otherwise identifies a student, including, but not
limited to, information in the student's educational record or email,
first and last name, home address, telephone number, email address,
or other information that allows physical or online contact,
discipline records, test results, special education data, juvenile
dependency records, grades, evaluations, criminal records, medical
records, health records, social security number, biometric
information, disabilities, socioeconomic information, food purchases,
political affiliations, religious information, text messages,
documents, student identifiers, search activity, photos, voice
recordings, or geolocation information.
(j) "K-12 school purposes" means purposes that customarily take
place at the direction of the K-12 school, teacher, or school
district or aid in the administration of school activities,
including, but not limited to, instruction in the classroom or at
home, administrative activities, and collaboration between students,
school personnel, or parents, or are for the use and benefit of the
school.
(k) This section 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.
( l ) This section does not limit the ability of an
operator to use student data, including covered information, for
adaptive learning or customized student learning purposes.
(m) This section does not apply to general audience Internet Web
sites, sites or general audience online
services, such as general audience online
applications, applications or general audience
mobile applications, even if login credentials created for an
operator's site, service, or application
Internet Web Sites or online service, such as online
application or a mobile application, may be used to access
those general audience sites, services, or applications.
Internet Web site or online services, such as an
online applications or mobile applications.
(n) This section does not limit Internet service providers from
providing Internet connectivity to schools or students and their
families.
(o) This section shall not be construed to prohibit an operator of
an Internet Web site, online service, online application,
or mobile application site or online service, such as
an online application or a mobile application, from marketing
educational products directly to parents so long as the marketing did
not result from the use of covered information obtained by the
operator through the provision of services covered under this
section.
(p) This section does not impose a duty upon a provider of an
electronic store, gateway, marketplace, or other means of purchasing
or downloading software or applications to review or enforce
compliance of this section on those applications or software.
(q) This section does not impose a duty upon a provider of an
interactive computer service, as defined in Section 230 of Title 47
of the United States Code, to review or enforce compliance with this
section by third-party content providers.
(r) This section does not impede the ability of students to
download, export, or otherwise save or maintain their own student
created data or documents.
SEC. 4. Section 1798.81.5 of the Civil Code is amended to read:
1798.81.5. (a) (1) It is the intent of the Legislature to ensure
that personal information about California residents is protected. To
that end, the purpose of this section is to encourage businesses
that own, license, or maintain personal information about
Californians to provide reasonable security for that information.
(2) For the purpose of this section, the terms "own" and "license"
include personal information that a business retains as part of the
business' internal customer account or for the purpose of using that
information in transactions with the person to whom the information
relates. The term "maintain" includes personal information that a
business maintains but does not own or license.
(b) A business that owns, licenses, or maintains personal
information about a California resident shall implement and maintain
reasonable security procedures and practices appropriate to the
nature of the
information, to protect the personal information from unauthorized
access, destruction, use, modification, or disclosure.
(c) A business that discloses personal information about a
California resident pursuant to a contract with a nonaffiliated third
party that is not subject to subdivision (b) shall require by
contract that the third party implement and maintain reasonable
security procedures and practices appropriate to the nature of the
information, to protect the personal information from unauthorized
access, destruction, use, modification, or disclosure.
(d) For purposes of this section, the following terms have the
following meanings:
(1) "Personal information" means either of the following:
an
(A) A n individual's
first name or first initial and his or her last name in combination
with any one or more of the following data elements, when either the
name or the data elements are not encrypted or redacted:
(A)
(i) Social security number.
(B)
(ii) Driver's license number or California
identification card number.
(C)
(iii) Account number, credit or debit card number, in
combination with any required security code, access code, or password
that would permit access to an individual's financial account.
(D)
(iv) Medical information.
(v) Health insurance information.
(B) A username or email address, in combination with a password or
security question and answer that would permit access to an online
account.
(2) "Medical information" means any individually identifiable
information, in electronic or physical form, regarding the individual'
s medical history or medical treatment or diagnosis by a health care
professional.
(3) "Health insurance information" means an individual's insurance
policy number or subscriber identification number, any unique
identifier used by a health insurer to identify the individual, or
any information in an individual's application and claims history,
including any appeals records.
(3)
(4) "Personal information" does not include publicly
available information that is lawfully made available to the general
public from federal, state, or local government records.
(e) The provisions of this section do not apply to any of the
following:
(1) A provider of health care, health care service plan, or
contractor regulated by the Confidentiality of Medical Information
Act (Part 2.6 (commencing with Section 56) of Division 1).
(2) A financial institution as defined in Section 4052 of the
Financial Code and subject to the California Financial Information
Privacy Act (Division 1.2 (commencing with Section 4050) of the
Financial Code).
(3) A covered entity governed by the medical privacy and security
rules issued by the federal Department of Health and Human Services,
Parts 160 and 164 of Title 45 of the Code of Federal Regulations,
established pursuant to the Health Insurance Portability and
Availability Act of 1996 (HIPAA).
(4) An entity that obtains information under an agreement pursuant
to Article 3 (commencing with Section 1800) of Chapter 1 of Division
2 of the Vehicle Code and is subject to the confidentiality
requirements of the Vehicle Code.
(5) A business that is regulated by state or federal law providing
greater protection to personal information than that provided by
this section in regard to the subjects addressed by this section.
Compliance with that state or federal law shall be deemed compliance
with this section with regard to those subjects. This paragraph does
not relieve a business from a duty to comply with any other
requirements of other state and federal law regarding the protection
and privacy of personal information.