Additionally, in light of California Attorney General Kamala Harris’ public position, provided in a Notice of Non-Compliance sent to the providers of leading mobile applications in October 2012, that her office would interpret CalOPPA’s application to “online services” to include mobile applications as well for compliance and enforcement purposes, the amended CalOPPA language would effectively cover mobile apps as well. Although a court has not yet decided whether the AG’s interpretation of CalOPPA’s applicability to mobile apps is legitimate, the AG’s position and her intention to enforce CalOPPA as if it applies to mobile apps is certain, and must be taken into account by businesses developing or providing mobile apps to smartphone customers.
As a result of these developments, businesses that have websites or online services, including mobile apps, used by California residents should review and update their privacy policies applicable to those services in order to ensure compliance with the new law. Specifically, A.B. 370 adds three new provisions to Section 22575(b) of the California Business and Professions Code, as follows:
- Section 22575(b)(5) is a new requirement to disclose how a business’s website or online service “responds to Web browser ‘do not track’ signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party Web sites or online services.” The online practice of collecting data about consumers “over time and across third-party websites and services” is legislative and regulatory language typically used to describe online behavioral tracking for marketing purposes, including the delivery of targeted online ads to consumers based on their web-browsing behavior.
- Section 22575(b)(6) is a new requirement to disclose whether third parties may collect on a business’s website or online service “personally identifiable information about an individual consumer’s online activities over time and across different Web sites.” This provision would require disclosure of whether third parties engaging in online behavioral tracking for a variety of purposes may collect PII through the business’s website or online service.
For further information, please see our full-length client advisory entitled California Adopts Do-Not-Track Disclosure Law, Reflecting a Significant New Development in a National Trend to Improve the Transparency of Online and Mobile Privacy Practices, which provides a more in-depth analysis of A.B. 370’s CalOPPA amendments and its potential impact on businesses with websites, mobile apps or online services used by California residents.
In the near-term, all businesses operating Internet websites or online services, including mobile apps, that could be accessed or used by Californians should review their privacy policies and tracking practices to ensure accurate privacy disclosures in compliance with the new California law, which will become effective on January 1, 2014.