Last updated on 21 December 2020 by Leah Hamilton (Qualified Solicitor. Writer at TermsFeed)
The state of privacy legislation in the United States is pretty shocking: there's no overarching federal data privacy law at all.
The United States lags far behind Europe and the UK, and even behind many up-and-coming economies in Southeast Asia.
The primary data privacy law in the US that applies generally, rather than to a specific privacy field such as health or children's privacy, is a state law rather than a federal law known as the California Online Privacy Protection Act 2003 (CalOPPA).
This guide will cover what CalOPPA is, what the law covers, who it applies to, and how to comply.
First, ask if CalOPPA applies to your business. CalOPPA applies to operators of commercial websites or online services that collect "personally identifiable information through the Internet about individual consumers residing in California."
In 2012, the California Attorney General issued an agreement with mobile app providers that stated that CalOPPA also applies to mobile apps.
"Personally Identifiable Information" for the purposes of CalOPPA includes but is not at all limited to:
Take a look back at the list of "personally identifiable information" above and check whether your website/mobile app collects any of those or any other information that could possibly be used to identify an individual. If you have users signing up for accounts, making purchases on your e-commerce store or if you use third-party services such as (Google Analytics, you collect personally identifiable information.
For example, you might want to say "If you create a user account, we will collect your contact details. If you purchase an item through our store, we will ask you to provide your physical address and credit card details so that we can process your payment."
Here's an example of a clause that discloses this information in an easy-to-understand way:
This clause addresses everything from working with third parties and conducting marketing campaigns to complying with laws and being involved in a transfer or sale of the business.
This can be a simple instruction such as "You can login to your user profile and correct, amend, or delete information about yourself."
Or, if you don't have that type of user account/interface, be sure to include your contact details where users can reach out and request to have their information changed.
For example: "Contact us at [X] phone number or [X] email address to find out what information we have collected about you, and to request any changes."
Here's a clause that includes a link to account settings where users can access and adjust their personal information, as well as an email address where users can reach out to request that the company make the adjustments on behalf of the user:
In this clause you need to outline whether or not you honor Do Not Track requests. You aren't required to honor them, but you are required to disclose whether or not you do. This clause can be a simple, basic statement acknowledging what you plan to do, such as this one:
Also include a clause that lets users know you may update your Policy from time to time and how you'll alert them of any material changes.
[...] being written in capital letters equal to or greater in size than the surrounding text or by being displayed in a type, font or color that contrasts with the surrounding text of the same size or must be otherwise distinguishable from surrounding text on the homepage.
In mobile apps, you can add a link within a menu, such as an About, Settings or Legal menu:
As long as your Policy can be accessed at any time, isn't hidden or in an unintuitive location, and actually includes the word "Privacy," you can add it to your website or mobile app in the way that best works with the layout and design.
In the example above, this leaves no doubt about whether the link has been clear and conspicuous enough for the user. It's clearly distinguished from other text.
In the case of mobile apps, a clickwrap method can be implemented by way of an "I agree" button or checkbox whenever users first open the app or whenever they sign-up for an account through the app.
Here's a great example from Samsung of how to implement a good clickwrap method in mobile apps:
If you collect personal information from residents of the state of California, you'll need to:
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
21 December 2020