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.”

Called “Making Your Privacy Practices Public: Recommendation on Developing a Meaningful Privacy Policy,” the guidelines are “intended to encourage companies to craft privacy policy statements that address significant data collection and use practices, use plain language and are presented in a readable format.”

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.”

Written By

Jedidiah Bracy, CIPP/E, CIPP/US


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

NEW! Raise Staff Awareness

Equip all your data-handling staff to reduce privacy risk, with Privacy Core™ e-learning essentials.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The GDPR requires 75,000 DPOs

What’s the formula for DPO success? IAPP CIPP/E and CIPM training, certifications and our global privacy conferences.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

NEW! FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

IAPP-OneTrust PIA Platform

Simplify privacy impact assessments with this cloud-based customizable platform - free to IAPP members!

72% say privacy is now a board-level concern

Find out more about privacy governance in the IAPP-EY Annual Privacy Governance Report 2016.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

More Resources »

Time to Get to Work at the Congress

It's almost here! Thought leadership, a thriving community and unrivaled education...the Congress prepares you for the challenges ahead. Register now!

Plan for the Summit

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities. Registration opens December 19!

Intensive Education at the Practical Privacy Series

This year's Series spotlights Data Breach, FTC and Consumer Privacy, GDPR and Government privacy issues. It’s the education you need NOW. Early bird ends Nov. 4!

Speak at the Symposium

The call for speakers is open! The Symposium returns to Toronto this Spring and programming is now underway. Looking to share your privacy prowess? Submit by November 20!

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»