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Volume XI, Number 57

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Garbo Would Be Happy: California's "Do Not Track Bill" Signed Into Law

Greta Garbo, as Grusinskaya in Grand Hotel, was famous for saying: “I want to be alone, I just want to be alone.” On Friday September 27, 2013, Governor Jerry Brown signed A.B. 370, which requires an operator of a website or online services that collects “personally identifiable information” to disclose how it responds to “do not track” signals. Companies operating commercial websites and online services will likely need to update their privacy policies to comply with new requirements in California as the result of the amendment of the California Online Privacy Protection Act (“CalOPPA”).

When the law comes into effect on January 1, 2014, companies will be required to include online information about how they respond to “do not track” signals, as well as other new information about their collection and use of personally identifiable information. More specifically, companies will need to disclose:

  • How the company responds to “do not track” signals or other mechanisms that provide consumers the ability to exercise choice over the collection of personally identifiable information about their online activities over time and across third-party websites or online services, if the company collects such information; and

  • Whether third parties may collect personally identifiable information about a consumer’s online activities over time and across different websites when a consumer uses the company’s website.

Companies who collect personally identifiable information should review their data collection practices and their privacy policies so they are able to make any necessary changes required by the bill. Under the existing law, companies are, however, given thirty days after receipt of a notice of noncompliance to post their privacy policy before they will be in violation of the law.

Attorney General Kamala Harris supported the new law and recently has taken action to enforce CalOPPA, including creating a Privacy Enforcement and Protection Unit within the California State Department of Justice and notifying mobile application companies of the applicability of CalOPPA and potential noncompliance with CalOPPA. In December 2012, Attorney General Harris brought an action against Delta Airlines alleging that it had violated CalOPPA and the California Unfair competition Law by failing to “conspicuously post a privacy policy in its Fly Delta app.” The action was dismissed on May 9, 2013. In support of its motion, Delta had argued that the Airline Deregulation Act of 1978 preempted CalOPPA’s application to the Fly Delta app, which provides airline related “services” as defined by the ADA. While many questions remain with regard to CalOPPA and whether the California State Attorney General has authority to pursue CalOPPA claims against non-California operators and whether mobile apps qualify as websites and online services within the meaning of CalOPPA, this case made clear that the California Attorney General’s office interprets CalOPPA to apply to mobile apps. and that it will take legal enforcement action to enforce its interpretation of CalOPPA.

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Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume III, Number 290
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About this Author

Robert A. Darwell, Entertainment, Technology, Advertising, Attorney, Sheppard
Partner

Robert Darwell heads the firm's internationally acclaimed Transactional Entertainment, Technology and Advertising Practice Group, which was recently ranked by U.S. Legal 500 in its top tier. He is a partner in the firm's Century City and New York offices. Mr. Darwell enjoys a global practice representing major motion picture studios, television networks, independent producers, new media companies, financial institutions, investors, financiers and other institutional and individual entertainment, media and convergence clients around the world in connection with all aspects of the...

310-228-3740
Edwin Komen Entertainment, attorney, Advertising law, Intellectual Property law Sheppard Mullin Washington DC
Partner

Mr. Komen is a partner in the Entertainment, Media & Communications and Intellectual Property Practice Groups in the firm's Washington, D.C. office while spending significant time in the Century City office. His global practice includes all aspects of copyright, trademark and unfair competition law, with a particular emphasis on motion picture, media, advertising and technology companies. He practices extensively before the United States Patent and Trademark Office and the United States Copyright Office.

Mr. Komen maintains a full spectrum worldwide copyright and trademark...

202-772-5328
James A. Mercer III, corporate Legal Specialist, Sheppard Mullin
Partner

Mr. Mercer is the Managing Partner in the firm’s London office and a member of the Corporate Practice Group. He previously served as co-chairman of the Corporate Practice Group, led the Capital Markets practice, and managed the firm’s China desk.

Areas of Practice

Mr. Mercer practices in the area of corporate law, with an emphasis in United States and cross-border capital markets and merger and acquisition transactions.

Mr. Mercer represents U.S. and international companies in public and private offerings of securities including initial public...

858-720-7469
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