BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 2799|
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                                    THIRD READING


          Bill No:  AB 2799
          Author:   Chau (D)
          Amended:  6/21/16 in Senate
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 6/14/16
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  78-0, 5/12/16 (Consent) - See last page for  
            vote

           SUBJECT:   Privacy:  personal information:  preschool and  
                     prekindergarten purposes


          SOURCE:    Common Sense Kids Action


          DIGEST:   This bill creates the Early Learning Privacy  
          Information Protection Act (ELPIPA) to extend all of the  
          protections offered by the Student Online Personal Information  
          Protection Act (SOPIPA) to pupils enrolled in preschools and  
          pre-kindergarten.  Provides that ELPIPA impose requirements  
          directly on Web sites, online services, and mobile applications  
          that are designed, marketed and used primarily by children  
          enrolled in a preschool or prekindergarten course of  
          instruction.  


          ANALYSIS:  


          Existing law:









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           1) Provides that, among other rights, all people have an  
             inalienable right to pursue and obtain privacy.  


           2) Requires an operator of a commercial Web site or online  
             service that collects personally identifiable information  
             through the Internet about individual consumers residing in  
             California who use or visit its Web site to conspicuously  
             post its privacy policy.  


           3) Specifies that SOPIPA provides privacy protections to K-12  
             students. 


           4) Defines "operator" as 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 K-12 school purposes and was designed  
             and marketed for K-12 school purposes.  


           5) Defines "Covered information" as personally identifiable  
             information or materials, in any media or format that meets  
             any of the following:


                 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 for K-12 school  
               purposes; 


                 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; or 


                 Is gathered by an operator through the operation of  
               their site, service, or application and is descriptive of a  








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               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.  


           1) Specifies that:


                 "Online service" includes cloud computing services, and  
               are within the scope of SOPIPA  if they otherwise meet the  
               definition of operator.  


                 "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.  


           1) Provides that an operator shall not knowingly engage in any  
             of the following activities with respect to their site,  
             service, or application:


                 Engage in targeted advertising on the operator's site,  
               service, or application, or target advertising on any other  
               site, service, or application when the targeting of the  
               advertising is based upon any information, including  
               covered information and persistent unique identifiers, that  








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               the operator has acquired because of the use of that  
               operator's site, service, or application where the operator  
               had actual knowledge that it is used primarily for K-12  
               school purposes and was designed and marketed for K-12  
               school purposes;


                 Use information, including persistent unique  
               identifiers, created or gathered by the operator's site,  
               service, or application, to amass a profile about a K-12  
               student except in furtherance of K-12 school purposes; or


                 Sell a student's information, including covered  
               information.  


           1) Provides that an operator shall not, with respect to their  
             site, service, or application, knowingly disclose covered  
             information unless the disclosure is made:


                 In furtherance of the K-12 purpose of the site, service,  
               or application, provided the recipient of the covered  
               information disclosed shall not further disclose the  
               information unless done to allow or improve operability and  
               functionality within that student's classroom or school and  
               is legally required to comply with encryption, deletion,  
               and security protocols; 


                 To ensure legal and regulatory compliance;


                 To respond to or participate in judicial process;


                 To protect the safety of users or others or security of  
               the site; or


                 To a service provider, provided the operator  








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               contractually 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,  
               and prohibits the service provider from disclosing any  
               covered information provided by the operator with  
               subsequent third parties, and requires the service provider  
               to implement and maintain reasonable security procedures  
               and practices, as specified.  


           1) Provides that SOPIPA's prohibitions shall not be construed  
             to prohibit the operator's use of information for  
             maintaining, developing, supporting, improving, or diagnosing  
             the operator's site, service, or application. 


           2) Requires an operator to:


                 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; and


                 Delete a student's covered information if the school or  
               district requests deletion of data under the control of the  
               school or district.  


           1) Allows for disclosure of covered information of a student,  
             as specified, and under the following circumstances:  


                 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;


                 For legitimate research purposes as required by state or  
               federal law and subject to the restrictions under  








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               applicable state and federal law or 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; or


                 To a state or local educational agency, including  
               schools and school districts, for K-12 school purposes, as  
               permitted by state or federal law.  


           1) Specifies that SOPIPA:


                 Does not prohibit an operator from using deidentified  
               student covered information within the operator's site,  
               service, or application or other sites, services, or  
               applications owned by the operator to improve educational  
               products or to demonstrate the effectiveness of the  
               operator's products or services, including in their  
               marketing; and 


                 Does not prohibit an operator from sharing aggregated  
               deidentified student covered information for the  
               development and improvement of educational sites, services,  
               or applications.  


                 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;


                 Does not limit the ability of an operator to use student  
               data, including covered information, for adaptive learning  
               or customized student learning purposes;










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                 Does not apply to general audience Internet Web sites,  
               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;


                 Does not limit Internet service providers from providing  
               Internet connectivity to schools or students and their  
               families;


                 Does not 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 under 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;


                 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; and 


                 Does not impede the ability of students to download,  
               export, or otherwise save or maintain their own student  
               created data or documents.  (Bus. & Prof. Code Sec. 22584  
               (k)-(r).)


          This bill creates ELPIPA providing pre-kindergarten and  
          pre-school students with the exact protections afforded to K-12  








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          students by SOPIPA (detailed above).  ELPIPA protects early  
          learners' privacy by:


          1)Prohibiting the sale of early learners' personal information  
            by operators of early learning online sites; 


          2)Prohibiting targeted advertising on early learning online  
            sites; 


          3)Prohibiting operators of early learning online sites from  
            using information they obtain on the early learning site to  
            target advertising on other sites; 


          4)Prohibiting operators from amassing a profile about an early  
            learning student except in furtherance of early learning  
            school purposes; 


          5)Prohibiting disclosure of early learner personal information  
            unless the disclosure is made in furtherance of the early  
            learning purpose; and 


          6)Requiring early learning online operators to keep the early  
            learner personal information safe and secure.


          Background


          The Federal Educational Rights and Privacy Act (FERPA) generally  
          seeks to protect the confidentiality of educational records (and  
          personally identifiable information contained therein) by  
          prohibiting the funding of schools that permit the release of  
          those records in violation of the Act.  (20 U.S.C. Sec.  
          1232g(b)(1).)  FERPA's prohibition only applies to the school  
          itself and contains various exemptions where the data may be  
          released without the written consent of the parents.  








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          Since the enactment of FERPA in 1974, educational institutions  
          have undergone dramatic changes in the way that students are  
          taught, including the increased use of technology.  With respect  
          to the use of technology and learning, the Department of  
          Education observes that:


            Schools can use digital resources in a variety of ways to  
            support teaching and learning.  Electronic grade books,  
            digital portfolios, learning games, and real-time feedback on  
            teacher and student performance, are a few ways that  
            technology can be utilized to power learning.  (U.S.  
            Department of Education, Use of Technology in Teaching and  
            Learning  
             
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          operators of early learning online sites; (2) prohibiting  
          targeted advertising on early learning sites; (3) prohibiting  
          operators of early learning online sites from using information  
          they obtain on the early learning site to target advertising on  
          other sites; (4) prohibiting operators from amassing a profile  
          about an early learning student except in furtherance of early  
          learning school purposes; (5) prohibiting disclosure of early  
          learner personal information unless the disclosure is made in  
          furtherance of the early learning purpose; and (6) requiring  
          these early learning online operators to keep the early learner  
          personal information safe and secure.


          Comments


          The author writes:


            Technology is an integral part of learning for today's kids,  
            even the youngest among them. Preschools and pre-kindergartens  
            increasingly integrate tablets in the classroom and use  
            cloud-computing services to enrich student education and  
            improve academic operations.  In a recent survey, 65% of  
            preschool educators report using digital devices and materials  
            in their classrooms.


            While young children can benefit from guided early online  
            learning, more needs to be done to ensure the safety of their  
            private information. Online services, websites, apps, and  
            digital platforms collect a wealth of personal data that is  
            vulnerable to exploitation.  The recent Vtech data breach,  
            which exposed the personal information of nearly 6.4 million  
            children, is just one example that shows the necessity of  
            protecting kids' private information as they engage with  
            education technology.


            California became the national leader on student privacy  
            protections with the unanimous passage of SB 1177 (Steinberg),  
            known as the Student Online Personal Information Protection  








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            Act (SOPIPA), in 2014.  This law, which went into effect on  
            January 1, 2016, ensures the privacy and security of personal  
            and academic data in 21st century K-12 classrooms.


            SOPIPA was passed in response to the massive amounts of  
            sensitive student data that online services could collect -  
            including academic performance, health records, and more -  
            without clearly limiting the use of that data for educational  
            purposes. 


            Preschools and pre-kindergartens should be safe-havens for  
            learning and benefit from the same privacy protections for  
            children as California's K-12 schools.




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/14/16)


          Common Sense Kids Action (source)
          California State PTA 
          California School Boards Association
          Los Angeles Unified School District
          Privacy Rights Clearinghouse


          OPPOSITION:   (Verified6/22/16)


          None received




           ASSEMBLY FLOOR:  78-0, 5/12/16








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           AYES:  Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,  
            Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon,  
            Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper,  
            Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines,  
            Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,  
            Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger  
            Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,  
            Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago,  
            Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,  
            Wilk, Williams, Wood, Rendon
           NO VOTE RECORDED:  Burke, Jones-Sawyer



          Prepared by:  Margie Estrada / JUD. / (916) 651-4113
          8/15/16 10:07:45


                                   ****  END  ****