California Legislature—2015–16 Regular Session

Assembly Bill No. 2799

Introduced by Assembly Member Chau

February 19, 2016

An act to add Chapter 22.2.5 (commencing with Section 22586) to Division 8 of the Business and Professions Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

AB 2799, as introduced, Chau. Privacy: personal information: preschool and prekindergarten purposes.

Existing law, The Student Online Personal Information Protection Act, restricts the use of information about elementary and secondary school students by operators of certain Internet Web sites and online services and applications by, among other things, prohibiting operators from engaging in targeted advertising, amassing student profiles except for K-12 school purposes, or selling or disclosing student information, as specified. Existing law also requires an operator to implement and maintain reasonable security procedures and practices appropriate to the nature of the covered information to protect the information from unauthorized access, use, and disclosure.

Existing law also prohibits an operator of an Internet Web site or online service 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. Existing law also makes 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.

This bill would, commencing on July 1, 2017, prohibit the operator of an Internet Web site, online service, online application, or mobile application that is used primarily for preschool or prekindergarten purposes, as defined, and was designed and marketed for preschool and prekindergarten purposes, to knowingly engage in specified activities with respect to their site, service, or application, including, among other things, engaging in targeted advertising, using specified information to amass a profile about a child except in furtherance of preschool or prekindergarten purposes, and selling or disclosing a child’s information, as specified. The bill would also require an operator to, among other things, implement and maintain reasonable security procedures and practices appropriate to the information to protect that information from unauthorized access, and to delete a child’s information at the request of a preschool or prekindergarten, as specified. The bill would authorize the disclosure of a child’s information under specified circumstances. The bill would also provide that its provisions are severable.

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.  

Chapter 22.2.5 (commencing with Section 22586)
is added to Division 8 of the Business and Professions Code, to
read:

 

Chapter  22.2.5. Early Learning Personal Information
Protection Act

 

22586.  

(a) For purposes of this section, “operator” means the
operator of an Internet Web site, online service, online application,
or mobile application with actual knowledge that the site, service,
or application is used primarily for preschool or prekindergarten
purposes and was designed and marketed for preschool and
prekindergarten purposes.

(b) An operator shall not knowingly engage in any of the
following activities with respect to their site, service, or application:

(1) (A) Engage in targeted advertising on the operator’s site,
service, or application.

(B) Target advertising on any other site, service, or application
if 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 described in subdivision (a).

(2) Use information, including persistent unique identifiers,
created or gathered by the operator’s site, service, or application,
to amass a profile about a child except in furtherance of preschool
or prekindergarten purposes.

(3) Sell a child’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 child
information.

(4) Disclose covered information unless the disclosure is made:

(A) In furtherance of the preschool and prekindergarten purposes
of the site, service, or application, provided that the recipient of
the covered information disclosed pursuant to this subparagraph:

(i) Is prohibited from further disclosure of the information unless
the disclosure is done to allow or improve operability and
functionality within that child’s preschool and prekindergarten.

(ii) Is required to comply with subdivision (d).

(B) To ensure legal and regulatory compliance.

(C) To respond to or participate in a judicial process.

(D) To protect the safety of users or others, or the security of
the site.

(E) To a service provider, if 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 to 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 constructed to prohibit
the operator’s use of information for maintaining, developing,
supporting, improving, or diagnosing the operator’s site, service,
or 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 child’s covered information if the preschool or
prekindergarten requests the deletion of data under the control of
the preschool, prekindergarten, school, or school district.

(e) Notwithstanding paragraph (4) of subdivision (b), an operator
may disclose covered information of a child if paragraphs (1) to
(3), inclusive, of subdivision (b) are not violated under the
following circumstances:

(1) If other provisions of law require the operator to disclose
the information, and the operator complies with that law in
protecting and disclosing the information.

(2) For research purposes (A) as required by law and subject to
the restrictions under that law or (B) as permitted by law and under
the direction of a preschool, prekindergarten, 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
of the child for purposes other than preschool and prekindergarten
purposes.

(3) To a state or local educational agency, including preschools
and prekindergartens, schools and school districts, for preschool
and prekindergarten purposes, as permitted by state or federal law.

(f) Nothing in this section prohibits an operator from using
deidentified covered information of a child as follows:

(1) Within the operator’s site, service, or application or other
sites, services, or applications owned by the operator to improve
educational products.

(2) To demonstrate the effectiveness of the operator’s products
or services, including their marketing.

(g) Nothing in this section prohibits an operator from sharing
aggregated deidentified covered information of a child for the
development and improvement of educational sites, services, or
applications.

(h) “Online service” includes a cloud computing service, which
must comply with this section if it otherwise meets 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 child, or the child’s parent or
legal guardian, to an operator in the course of the child’s, parent’s,
or legal guardian’s use of the operator’s site, service, or application
for preschool and prekindergarten purposes.

(2) Is created or provided by an employee or agent of the
preschool, prekindergarten, school district, local educational
agency, or county office of education, to an operator.

(3) Is gathered by an operator through the operation of the site,
service, or application described in subdivision (a), and is
descriptive of a child or otherwise identifies a child, including, but
not limited to, information in the child’s educational record, 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) “Preschool or prekindergarten purposes” means purposes
that customarily take place at the direction of preschools,
prekindergartens, teachers, school districts, and aids, including,
but not limited to, instruction in the classroom, facility, or home,
administrative activities, and collaboration between children, early
learning personnel, or parents, or are for the use and benefit of the
preschools, prekindergartens, school district, or early learning
personnel.

(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
a child’s educational data, including covered information, for
adaptive learning or customized early learning purposes.

(m) This section does not apply to general audience Internet
Web site, general audience online services, general audience online
applications, or general audience mobile applications, even if login
credentials created for an operator’s site, service, or application
may be used to access those general audience sites, services, or
applications.

(n) This section does not limit Internet service providers from
providing Internet connectivity to preschools, prekindergartens,
schools, or children 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 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 by 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 minors to
download, export, or otherwise save or maintain their own
personally created data or documents.

22587.  

This chapter shall become operative on July 1, 2017.

SEC. 2.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.