Assembly Bill No. 68
CHAPTER 829
An act to add Chapter 22 (commencing with Section 22575) to
Division 8 of the Business and Professions Code, relating to privacy.
[Approved by Governor October 11, 2003. Filed
with Secretary of State October 12, 2003.]
LEGISLATIVE COUNSEL’S DIGEST
AB 68, Simitian. Online Privacy Protection Act of 2003.
Existing law does not regulate the security and confidentiality of
consumer personal and identifying information obtained by persons and
entities engaged in online business transactions.
This bill would require an operator, defined as a person or entity that
collects personally identifiable information from California residents
through an Internet Web site or online service for commercial purposes,
to conspicuously post its privacy policy on its Web site or online service
and to comply with that policy. The bill, among other things, would
require that the privacy policy identify the categories of personally
identifiable information that the operator collects about individual
consumers who use or visit its Web site or online service and 3rd parties
with whom the operator may share the information. The bill would
preempt and supersede laws of specified local government entities
regarding the posting of a privacy policy on an Internet Web site. The bill
would become operative on July 1, 2004.
The people of the State of California do enact as follows:
SECTION 1. This act shall be known as, and may be cited as, the
Online Privacy Protection Act of 2003.
SEC. 2. The Legislature finds and declares all of the following:
(a) Each operator of a commercial Web site or online service has an
obligation to post privacy policies that inform consumers who are
located in California of the Web site’s or online service’s information
practices with regard to consumers’ personally identifiable information
and to abide by those policies.
(b) It is the intent of the Legislature to require each operator of a
commercial Web site or online service to provide individual consumers
residing in California who use or visit the commercial Web site or online
service with notice of its privacy policies, thus improving the knowledge
these individuals have as to whether personally identifiable information
Ch. 829
—2—
93
obtained by the commercial Web site through the Internet may be
disclosed, sold, or shared.
(c) It is the intent of the Legislature that Internet service providers or
similar entities shall have no obligations under this act related to
personally identifiable information that they transmit or store at the
request of third parties.
SEC. 3. Chapter 22 (commencing with Section 22575) is added to
Division 8 of the Business and Professions Code, to read:
C
HAPTER 22. INTERNET PRIVACY REQUIREMENTS
22575. (a) An operator of a commercial Web site or online service
that collects personally identifiable information through the Internet
about individual consumers residing in California who use or visit its
commercial Web site or online service shall conspicuously post its
privacy policy on its Web site, or in the case of an operator of an online
service, make that policy available in accordance with paragraph (5) of
subdivision (b) of Section 22578. An operator shall be in violation of this
subdivision only if the operator fails to post its policy within 30 days
after being notified of noncompliance.
(b) The privacy policy required by subdivision (a) shall do all of the
following:
(1) Identify the categories of personally identifiable information that
the operator collects through the Web site or online service about
individual consumers who use or visit its commercial Web site or online
service and the categories of third-party persons or entities with whom
the operator may share that personally identifiable information.
(2) If the operator maintains a process for an individual consumer
who uses or visits its commercial Web site or online service to review
and request changes to any of his or her personally identifiable
information that is collected through the Web site or online service,
provide a description of that process.
(3) Describe the process by which the operator notifies consumers
who use or visit its commercial Web site or online service of material
changes to the operator’s privacy policy for that Web site or online
service.
(4) Identify its effective date.
22576. An operator of a commercial Web site or online service that
collects personally identifiable information through the Web site or
online service from individual consumers who use or visit the
commercial Web site or online service and who reside in California shall
be in violation of this section if the operator fails to comply with the
— 3 —
Ch. 829
93
provisions of Section 22575 or with the provisions of its posted privacy
policy in either of the following ways:
(a) Knowingly and willfully.
(b) Negligently and materially.
22577. For the purposes of this chapter, the following definitions
apply:
(a) The term ‘‘personally identifiable information’’ means
individually identifiable information about an individual consumer
collected online by the operator from that individual and maintained by
the operator in an accessible form, including any of the following:
(1) A first and last name.
(2) A home or other physical address, including street name and name
of a city or town.
(3) An e-mail address.
(4) A telephone number.
(5) A social security number.
(6) Any other identifier that permits the physical or online contacting
of a specific individual.
(7) Information concerning a user that the Web site or online service
collects online from the user and maintains in personally identifiable
form in combination with an identifier described in this subdivision.
(b) The term ‘‘conspicuously post’’ with respect to a privacy policy
shall include posting the privacy policy through any of the following:
(1) A Web page on which the actual privacy policy is posted if the
Web page is the homepage or first significant page after entering the Web
site.
(2) An icon that hyperlinks to a Web page on which the actual privacy
policy is posted, if the icon is located on the homepage or the first
significant page after entering the Web site, and if the icon contains the
word ‘‘privacy.’’ The icon shall also use a color that contrasts with the
background color of the Web page or is otherwise distinguishable.
(3) A text link that hyperlinks to a Web page on which the actual
privacy policy is posted, if the text link is located on the homepage or
first significant page after entering the Web site, and if the text link does
one of the following:
(A) Includes the word ‘‘privacy.’’
(B) Is written in capital letters equal to or greater in size than the
surrounding text.
(C) Is written in larger type than the surrounding text, or in
contrasting type, font, or color to the surrounding text of the same size,
or set off from the surrounding text of the same size by symbols or other
marks that call attention to the language.
Ch. 829
—4—
93
(4) Any other functional hyperlink that is so displayed that a
reasonable person would notice it.
(5) In the case of an online service, any other reasonably accessible
means of making the privacy policy available for consumers of the
online service.
(c) The term ‘‘operator’’ means any person or entity that owns a Web
site located on the Internet or an online service that collects and
maintains personally identifiable information from a consumer residing
in California who uses or visits the Web site or online service if the Web
site or online service is operated for commercial purposes. It does not
include any third party that operates, hosts, or manages, but does not
own, a Web site or online service on the owner’s behalf or by processing
information on behalf of the owner.
(d) The term ‘‘consumer’’ means any individual who seeks or
acquires, by purchase or lease, any goods, services, money, or credit for
personal, family, or household purposes.
22578. It is the intent of the Legislature that this chapter is a matter
of statewide concern. This chapter supersedes and preempts all rules,
regulations, codes, ordinances, and other laws adopted by a city, county,
city and county, municipality, or local agency regarding the posting of
a privacy policy on an Internet Web site.
22579. This chapter shall become operative on July 1, 2004.
O