Amended in Senate June 21, 2016

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 pupil except in furtherance of preschool or prekindergarten purposes, and selling or disclosing a pupil’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 pupil’s information at the request of a preschool, prekindergarten, or district, as specified. The bill would authorize the disclosure of a pupil’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:

(1) “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.

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

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

(3) Sell a pupil’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 pupil
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) begin delete   end delete begin delete Is prohibited from further disclosure of end delete begin insert   end insert begin insert Shall not further
disclose end insert the information unless done to allow or improve
operability and functionality within that pupil’s classroom,
preschool, or prekindergarten.

(ii) Is begin insert legally end insert required to comply with subdivision begin delete (d). end delete begin insert (d); end insert

(B) To ensure legal and regulatory begin delete compliance. end delete begin insert compliance; end insert

(C) To respond to or participate in a judicial begin delete process. end delete begin insert process; end insert

(D) To protect the safety of users or begin delete others, or the end delete begin insert others or end insert
security of the begin delete site. end delete begin insert site; or end insert

(E) To a service provider, begin delete if end delete begin insert provided end insert 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 begin delete to end delete begin insert by end insert
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.

(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 pupil’s covered information if the preschool,
prekindergarten, or district requests begin delete the end delete deletion of data under the
control of the preschool, prekindergarten, or district.

(e) Notwithstanding paragraph (4) of subdivision (b), an operator
may disclose covered information of a begin delete pupil if end delete begin insert pupil, as long as end insert
paragraphs (1) to (3), inclusive, of subdivision (b) are not begin delete violated end delete
begin insert violated, end insert 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 begin insert legitimate end insert research begin delete purposes end delete begin insert purposes: end insert (A) as required
by state or federal law and subject to the restrictions under
applicable state begin delete or end delete begin insert and end insert federal law or (B) as allowed by state or
federal law and under the direction of a preschool, prekindergarten,
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 begin delete of end delete begin insert on end insert the pupil for purposes other than
preschool and prekindergarten purposes.

(3) To a state or local educational agency, including preschools,
prekindergartens, 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 pupil covered information 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 begin insert in end insert their marketing.

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

(h) “Online service” includes cloud computing services, which
must comply with this section if begin delete it end delete begin insert they end insert otherwise begin delete meets end delete begin insert meet end insert 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 pupil, or the pupil’s parent or
legal guardian, to an operator in the course of the pupil’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 begin delete the end delete begin insert a end insert
site, service, or application described in subdivision (a), and is
descriptive of a pupil or otherwise identifies a pupil, including,
but not limited to, information in the pupil’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) “Preschool or prekindergarten purposes” means purposes
that customarily take place at the direction of the preschool,
prekindergarten, teacher, or school district, or aid in the
administration of preschool or prekindergarten activities, including,
but not limited to, instruction in the begin delete classroom, end delete begin insert classroom end insert or at
home, administrative activities, and collaboration between pupils,
preschool or prekindergarten personnel, or parents, or are for the
use and benefit of the preschool or prekindergarten.

(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 pupil’s begin delete educational end delete data, including covered information, for
adaptive learning or customized early learning purposes.

(m) This section does not apply to general audience Internet
Web begin delete site, end delete begin insert sites, end insert 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,
or pupils 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 begin delete by end delete begin insert under end insert 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 pupils 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.