Amended in Assembly April 7, 2016

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 amended, 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 begin delete child end delete begin insert pupil end insert except in furtherance of preschool or prekindergarten purposes, and selling or disclosing a begin delete child’s end delete begin insert pupil’s end insert 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 begin delete child’s end delete begin insert pupil’s end insert information at the request of a begin delete preschool or end delete begin insert preschool, end insert prekindergarten, begin insert or district, end insert as specified. The bill would authorize the disclosure of a begin delete child’s end delete begin insert pupil’s end insert 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 begin delete section, “operator” end delete begin insert section: end insert

begin insert (1) end insert begin insert   end insert begin insert “Operator” end insert 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.

begin insert

(2) “Pupil” means a child enrolled in a preschool or
prekindergarten course of instruction.

end insert

(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 begin delete child end delete begin insert pupil end insert except in furtherance of
preschool or prekindergarten purposes.

(3) Sell a begin delete child’s end delete begin insert pupil’s end insert 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 begin delete child end delete begin insert pupil end insert 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
begin delete the disclosure is end delete done to allow or improve operability and
functionality within that begin delete child’s preschool and end delete begin insert pupil’s classroom,
preschool, or end insert 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 begin delete constructed end delete begin insert construed end insert
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 begin delete child’s end delete begin insert pupil’s end insert covered information if the begin delete preschool
or prekindergarten end delete begin insert preschool, prekindergarten, or district end insert requests
the deletion of data under the control of the preschool,
prekindergarten, begin delete school, end delete or begin delete school end delete district.

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

(1) If other provisions of begin insert federal or state end insert law require the operator
to disclose the information, and the operator complies with begin delete that end delete
begin insert the requirements of federal and state end insert law in protecting and
disclosing begin delete the end delete begin insert that end insert information.

(2) For research purposes (A) as required by begin insert state or federal end insert
law and subject to the restrictions under begin delete that end delete begin insert applicable state or
federal end insert law or (B) as begin delete permitted by end delete begin insert allowed by state or federal end insert law
and under the direction of a preschool, prekindergarten, begin delete school, end delete
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 begin delete child end delete begin insert pupil end insert for purposes other than
preschool and prekindergarten purposes.

(3) To a state or local educational agency, including begin delete preschools
and prekindergartens, schools end delete begin insert preschools, prekindergartens, end insert 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 begin insert pupil end insert covered information begin delete of a child end delete 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 begin delete child end delete begin insert pupil end insert for
the development and improvement of educational sites, services,
or applications.

(h) “Online service” includes begin delete a end delete cloud computing begin delete service, end delete
begin insert services, end insert 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 begin delete child, end delete begin insert pupil, end insert or the begin delete child’s end delete begin insert pupil’s end insert
parent or legal guardian, to an operator in the course of the begin delete child’s, end delete
begin insert pupil’s, end insert 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 begin delete child end delete begin insert pupil end insert or otherwise identifies a begin delete child, end delete begin insert pupil, end insert
including, but not limited to, information in the begin delete child’s end delete begin insert pupil’s end insert
educational begin delete record, end delete begin insert record or email, end insert 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 begin delete preschools,
prekindergartens, teachers, school districts, and aids, end delete begin insert the preschool,
prekindergarten, teacher, or school district, or aid in the
administration of preschool or prekindergarten activities, end insert
including, but not limited to, instruction in the classroom, begin delete facility, end delete
or begin insert at end insert home, administrative activities, and collaboration between
begin delete children, early learning end delete begin insert pupils, preschool or prekindergarten end insert
personnel, or parents, or are for the use and benefit of the begin delete preschools, prekindergartens, school district, or early learning
personnel. end delete begin insert preschool or prekindergarten. end insert

(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 begin delete child’s end delete begin insert pupil’s end insert 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,
begin delete schools, or children end delete begin insert or pupils end insert 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 begin delete minors end delete begin insert pupils end insert 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.