California’s “Do Not Track” Legislation

In September 2013, California’s legislature enacted a new “Do Not Track” law–Assembly Bill 370 (“AB-370”)–that requires websites to disclose their practice of tracking consumers’ personal identification information. The new law may be the first step towards universal anti-tracking standards, which will provide greater protection over the Internet for online users and their personal information. According to the executive director of the Center for Digital Democracy, Jeff Chester, at the very least the new law is a signal to websites that political bodies are mobilizing to protect online consumer privacy.

What Are the Provisions of California’s “Do Not Track” Law?

Under AB-370, any website that collects personal information from online users will have a duty to disclose the specifics of their tracking behavior to consumers. The “Do Not Track” legislation requires that websites inform consumers their protocol for responding to do not track signals (“DNT signals”). For instance, consumers who use Mozilla Firefox have the option to request that the browser not track the users’ personal information. However, Mozilla is still under no legal obligation to follow this request. AB-370 also addresses any practices that allow third parties and sites to access and use consumers’ personal information. Specifically, the new law requires websites to disclose whether they grant third-party access to personal information the website has gathered from online users. This law does not prohibit websites from continuing to track personal information, or grant access to this information to third parties. Instead, the law aims to improve disclosure standards, so that consumers are better informed of how their online activities can affect access to their personal information.

Who Will Benefit From California’s “Do Not Track” Legislation?

AB-370 provides prosecutors with a greater range of regulations to implement in order to protect online privacy. Indeed, under this new law, any website that is registered in California is responsible for immediately updating its privacy policy to include the new provisions as necessary. This new law is also beneficial for efforts to define online tracking to provide solutions for protecting consumers online. Ironically, AB-370 does not define tracking behavior. Instead, the law allows individual websites to define their own tracking behavior. This expands the issue wide enough to include all tracking information, and focuses on disclosure to consumers instead of aiming to directly address consumer protections. However, this may empower websites to manipulate definitions for their own gain. Nonetheless, this law will mean increased costs for websites, which will be forced to expend time and resources to review their tracking behavior, determine whether the behavior requires disclosures, establish appropriate and current descriptions of these practices, and maintain legal and administrative resources to respond to consumer complaints and potential lawsuits. The consumers, whom the law aims to protect, may not benefit at all from the new law. For instance, consumers rarely, if ever, read privacy disclosures. And, where advocates on either side of the tracking issue have struggled to define what constitutes “tracking,” consumers may misunderstand disclosure agreements to mean they are enjoying far greater protections for their personal information online. Finally, legislatures have struggled to regulate the ever-changing dynamics of the Internet, and this law may once again prove the inherent difficulty in constraining practices that can be defined.

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