Online Privacy Protection Act

The California Online Privacy Protection Act of 2003 (OPPA)^[1], effective as of July 1, 2004, is a California State Law. According to this law, operators of commercial websites that collect personally identifiable information from California's residents are required to conspicuously post and comply with a privacy policy that meets certain requirements.

Who must comply

This act is applicable to any individual or entity (corporation) that owns a commercial web page or an online service that collects and records confidential personal information from an individual living in California, visiting such web pages. This act, however, is not applicable to ISPs or similar entities who record data upon request from a third party.

In this case, confidential personal information, collected online, includes first and last names, a street address, an email address, a telephone number, a social security number, or various other data which allows the tracking of a user. Personally identifiable information can include date of birth, height, weight, etc, when this information is recorded and stored online by the operator in combination with one of the above identifiers. An individual user is one seeking to or acquiring goods or services, money or credit for himself, his family, or his household.^[2]

Requirements of the act

According to the act, the operator of a website must post a distinctive and easily-found link to the website's privacy policy. The privacy policy must detail the kinds of information gathered by the website, how the information may be shared with other parties, and, if such a process exists, describe the process the user can use to review and make changes to their stored information. It also must include the policy's effective date and a description of any changes since then.

The owner of a website can be subject to legal actions over OPPA within 30 days of being notified for not posting the privacy policy or not meeting the law's criteria. The owner could be faulted for his negligence, possibly even consciously, over his inability to comply with the act, which ultimately results to charges filed against him for this noncompliance.^[3]

Consequences of non-compliance

As it does not contain enforcement provisions of its own, OPPA is expected to be enforced through California’s Unfair Competition Law (UCL)^[4], which prohibits unlawful, unfair or fraudulent business acts or practices. UCL may be enforced for violations of OPPA by government officials seeking civil penalties or equitable relief, or by private parties seeking private claims. ^[5]

Compliance by Google

In May 2008, getting to Google's privacy policy required clicking on "About Google" on its home page, which brought up a page that included a link to its privacy policy. New York Times reporter Saul Hansell posted a blog entry^[6] raising questions about Google's compliance with this act. A coalition of privacy groups also sent a letter ^[7] to Google's CEO, Eric Schmidt, questioning the absence of a privacy policy link on its home page. According to Electronic Privacy Information Center director Marc Rotenberg, a lawsuit challenging Google's privacy policy practices as a violation of California law was not filed in the hope that their informal complaints could be resolved through discussions.^[8] Later, Google added a direct link to its privacy policy on its homepage.^[9]

Scope

The act has a very broad scope, well beyond California’s border. Neither the web server nor the company that created the web site has to be in California to be under the scope of the law. The web site only has to be accessible by California residents.^[10]

References

1. ^ The Online Privacy Protection Act of 2003, Cal. Bus. & Prof. Code §§ 22575-22579 (2004).
2. ^ Cooley Godward LLP, Cooley Alert! California Online Privacy Protection Act of 2003, (June 2004).
3. ^ Privacy Rights Clearinghouse, California's Online Privacy Protection Act Goes into Effect July 1: Requires Internet Merchants to Post a Privacy Policy (June 28, 2004).
4. ^ Cal. Bus. & Prof. Code §§ 17200-17210.
5. ^ Hunton & Williams LLP, New Requirements for Online Privacy Policies (June 2004).
6. ^ Saul Hansell, Is Google Violating a California Privacy Law?, New York Times (May 30, 2008).
7. ^ Letter to Dr. Eric Schmidt, CEO Google Inc. from Privacy Groups (June 3, 2008).
8. ^ Anne Broache, Google attacked over privacy policy visibility, CNET News (June 3, 2008).
9. ^ John Paczkowski, "Privacy" Counts as Half a Word if It's in an 8-Point Font, All Things Digital (July 7, 2008).
10. ^ John Yates and Paul Arne, Protecting Your Visitors: California's Online Privacy Protection Act Could Set Standards, LocalTechWire.com (Feb. 23, 2004).