California Attorney General (AG) Kamala Harris on Wednesday issued a new set of guidelines to help businesses disclose, in clear language, all their privacy practices—including whether Do-Not-Track (DNT) preferences are being honored—to comply with recent amendments to the law commonly called CalOPPA that went into effect January 1.
In a statement, Harris said, “This guide is a tool for businesses to create clear and transparent privacy policies that reflect the state’s privacy laws and allow consumers to make informed decisions.”
Special Assistant Attorney General on Technology and Privacy Matters Jeff Rabkin told The New York Times that the AG’s office would review businesses’ privacy policies and work with them to ensure they are complying with the new law. Those that fail to comply will receive 30-day warnings prior to facing potential litigation from California.
CalOPPA, or the California Online Privacy Protection Act, has been in effect since 2003 but was updated in 2013 to include what some call the ‘”Do-Not-Track amendments.” Two new obligations for site operators include the disclosure of “how the operator responds to web browsers’ Do-Not-Track signals” and “whether other parties may collect personally identifiable information about an individual consumer’s online activities…”
In a report for The Privacy Advisor last November, Brian Hengesbaugh, CIPP/US, and Amy de La Lama, both of Baker & McKenzie, described the implementation challenges, including the definitional issues around what Do Not Track means. “Perhaps the most challenging issues,” they wrote, “relate to consumer expectations. What does a consumer expect when they configure their browser to Do Not Track, and how do site operators draft their disclosures to either meet or dispel such expectations?”
With the recent announcement by Yahoo that it will no longer honor DNT browser signals, and with others, including the Electronic Frontier Foundation and its Privacy Badger, developing alternative anti-tracking tools, the future of DNT browser signals as a way for consumers to manage how they are tracked online is unclear at best.
However, the AG’s new guidelines include a section on online tracking and DNT specifically. “Consumers whose browsers send a Do-Not-Track signal cannot easily determine how a site or service responds to the signal,” the guidelines state. “Providing a description of your site or service’s online tracking practices, and of the possible presence of other parties that may be tracking consumers, can help to make this invisible practice more visible.”
Center for Democracy & Technology Consumer Privacy Director Justin Brookman, who has also worked extensively with the World Wide Web Consortium’s Tracking Practices Working Group, noted it’s unclear even whether a company must describe how it handles a DNT signal or simply provide a link to a choice program. He said, “It seems the attorney general doesn’t find current practices to be good enough,” and that the AG is “trying to encourage folks to be more explicit in the body of the policy but aren’t yet prepared to say that just a link is legally insufficient.”
Some in the industry applauded the guidelines. A representative from Microsoft said the guidelines will be helpful for industry, adding, “We appreciate the willingness to engage industry in developing some of the thinking.”
The guidance also has the support of the Digital Advertising Alliance (DAA).
DAA Executive Director Lou Mastria told The Privacy Advisor, “The amendments to the California Online Privacy Protection Act and the guidance from the CA Attorney General’s Office fully align with the Digital Advertising Alliance’s existing privacy framework,” adding, “The DAA has been in consultation with the Office of the Attorney General and will update its program materials to reflect that alignment, creating simple, standardized guidance for program participants covered by the California law.”
In providing analysis to The Privacy Advisor after the guidelines’ release, Hengesbaugh applauded the guidance, noting it “is clearly written and therefore is helpful for businesses, particularly small businesses, which would like to know the California AG’s thoughts about best practices for drafting privacy policies.”
For Do Not Track, he said the guidance is helpful because it indicates the “California AG does not consider there is any legal requirement for sites to honor Do-Not-Track signals but rather the obligation is one of notice and transparency for how the site responds to such signals.”
However, Hengesbaugh expressed some concerns about the guidance, as well, noting it “does not answer some of the difficult questions about CalOPPA, including what it means by ‘other mechanisms,’” beyond web browser DNT signals, for which the site operators must provide a description of their response in their privacy policies, and “whether there are any safe harbors that site operators can adopt to confirm that they are complying with their legal obligations under CalOPPA.”
He also said the guidance contains elements that go “well beyond the requirements of the law at this stage, including recommendations to provide links to the privacy policies of third parties with whom the site shared personally identifiable information and obligations to specify the retention period for each type or category of personally identifiable information collected.”
While the clearly written guidelines may help businesses, Hengesbaugh notes, “the guidance confirms that we are entering a brave new era of privacy regulation in the United States that adds a layer of granularity to the required disclosures for website and mobile app operators,” adding, “at the end of the day, all of these regulatory developments are going to require website and mobile app operators to maintain a much greater degree of control over the first- and third-party cookies and tracking features on their sites.”