This post was written by Kathyleen A. O’Brien.
On April 6, 2011, California State Senator Alan Lowenthal (D-Longbeach) introduced a version of “do-not-track” legislation in the form of SB 761. An initial hearing will be held by the California Senate Judiciary Committee on April 26.
The bill largely follows the current “do-not-track” framework being proposed by U.S. Rep. Jackie Speier (D-CA) and others in Congress. Many, including Sen. Lowenthal, see the California bill as a way to spur action on the national level. Although privacy is largely viewed as a bipartisan issue, Lowenthal is hoping that because the Democrats control the California governorship and legislature, the process of passing a “do-not-track” bill will be quicker and smoother on the state level. Interestingly, the effort is attracting at least some bipartisan support with Judiciary Committee member Sen. Tom Harman (R-Huntington Beach) expressing interest in tackling the issue of online tracking. Ultimately, passage of the bill would, once again, put California out in front on online consumer protection issues much like its “do-not-call” and data breach laws have in the past.
The bill requires the Attorney General, in consultation with the California Office of Privacy Protection, to adopt regulations that would require companies doing business in California that collect, use, or store online data regarding consumers to provide those consumers with a way to opt out of such practices. Additionally, the bill would grant the Attorney General power to impose regulations that may, among other things, require companies to provide consumers with access to their personal data, and a clear and easy to understand data retention and security policy. As a nod to the business community, the Attorney General would have the power to create exemptions for commonly accepted business practices.
Any company that willfully fails to comply with the adopted regulations would be liable to consumers in a civil action with statutory damages, which would range from $100 to $1,000. The proposed bill could include punitive damages also, as determined by the court, as well as costs and reasonable attorney’s fees.
Research for this post was conducted by Legal Intern Noah Cherry.