Monday, April 11, 2011

California Bill Would Allow Consumers to Opt Out of Online Tracking

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

California consumers would have the opportunity to opt out of online tracking, under the provisions of a proposed bill under consideration in the California Senate.

Senate Bill 761 would call on the Attorney General, in consultation with the California Office of Privacy Protection, to adopt regulations requiring persons or entities doing business in California to provide California consumers with a method to opt out of the collection, use, and storage of their personal information.

Entities would also be required to disclose how they use consumers’ information and to which third parties they transfer the information.

Covered Information

Information covered by the bill would include the online activity of an individual and other personal identifying information, including postal addresses, e-mail addresses, telephone or fax numbers, and government-issued identification numbers.

The measure would not cover business addresses, telephone numbers, or fax numbers, or any information collected from or about an employee by an employer, prospective employer, or former employer that directly relates to the employee-employer relationship.


The measure would exempt persons or entities that:

(1) Store information about fewer than 15,000 individuals;

(2) Collect information from fewer than 10,000;

(3) Do not collect or store sensitive information; and

(4) Do not engage in monitoring or analysis of consumer behavior as the person’s or entity’s primary business.

Civil Action for Damages

The bill would make a covered entity that willfully fails to comply with the regulations liable to an affected consumer in a civil action for damages between $100 and $1,000, as well as punitive damages in the court’s discretion.

Originally introduced February 18 as an amendment to California’s coupon law (Business and Professions Code Sec. 17701), the bill was amended on March 24 by its author, Senator Alan S. Lowenthal, to substitute text regulating online tracking.

On April 4, the bill was amended to limit the exemption from coverage to entities that meet all of the four conditions listed above, rather than any one of them.

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