Privacy is ?the right to decide when, how, and to what extent information about [yourself] is communicated to others.?[i] Although the umbrella of privacy law covers many distinct legal concepts,[ii] with the rise of online behavioral advertising, the right to control the dissemination of information about you has become an increasingly important aspect of law. Online behavioral advertising is the practice of tracking an individual?s Internet use and using that information to target them with advertisements based on that information. With the rise of online behavioral advertising,[iii] companies have been tracking everything from an individual?s browsing history to GPS location using information from consumers? smart phones and computers.[iv] In 1972, California citizens amended the State Constitution and added ?privacy? as an inalienable right.[v] Based on this added right, California enacted the Shine the Light Law, the California Security Breach Information Act, and the Online Privacy Protection Act to try and protect consumers from invasion of privacy online by different entities.[vi] The Shine the Light Law requires businesses to provide customers with a list of certain information that they share with third parties for the purpose of the third party?s direct marketing purposes, upon request by the customer.[vii] The California Security Breach Information Act requires that companies notify consumers if there has been a data security breach that may have compromised the security of certain types of personal information (i.e. a consumer?s name in connection with a Social Security number, credit card number, Driver?s license number or medical information).[viii] For both statutes, violation by the governed entities can open the door for a claim of injunctive relief by a harmed consumer, and damages may be awarded for willful, intentional, or reckless breaches of the Shine the Light Law.[ix] The Online Privacy and Protection Act requires companies and websites to make their privacy policies available to the consumers so they are aware of what information is being collected about them, how it is being used, and who can access it.[x]
The problem however, is that many consumers are still unaware that the practice of collecting and selling personal information and Internet usage patterns is taking place, and if they are aware, it is difficult and sometimes impossible to prevent the collection and sharing of his or her data.[xi] The current debate surrounds the extent of privacy regulations. The back-and-forth is between privacy advocates calling for increased government regulation,[xii] and Internet companies calling for self-regulatory principles as a remedy for privacy concerns.[xiii] Privacy advocates do not believe that self-regulation has worked thus far, and therefore the government should place affirmative duties on companies who handle, collect, or sell personally identifiable information (name, address, etc.) and non-personally identifiable information (GPS location, music interests, etc.) to allow consumers to opt-in, as opposed to having to opt-out of the collection of that information. Internet companies argue however, that increased regulation will stall innovation and hurt their ad-revenues, possibly leading to an Internet where you have to pay for the services you desire. On one hand, in California, courts have repeatedly affirmed the importance of an individual?s right to privacy.[xiv] Conversely, courts and legislatures are reluctant to enact legislation that places large administrative burdens on companies or that squanders innovation. Given the number of Internet companies based in California,[xv] the state is caught in a unique bind between preserving the rights of the public, while enacting laws that will not compel these corporations to move elsewhere. Going forward, California will need to continue to balance these interests in light of the constantly evolving Internet world.
________________[i] Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. Rev. 1335 (1992).
[iii] Slade Cutter, The 7 ?creep factors? of online behavioral advertising, venturebeat, (February 22, 2012 5:53 PM), available at http://venturebeat.com/2012/02/22/the-7-creep-factors-of-online-behavioral-advertising/.
[iv] Kate Kaye, Ad Trade Groups Lament California Mobile Privacy Push, AdAge, (Jan. 10 2013), available at http://adage.com/article/digital/ad-trade-groups-lament-california-mobile-privacy-push/239124/.
[v] Joeseph Nicholson, California Right to Privacy Law, ehow.com, (last visited March 12, 20133), available at http://www.ehow.com/about_6117701_california-right-privacy-law.html.
[vi] Cal. Civ. Code ?? 1798.80 ? 1798.84 (2000 & Supp. 2010); Cal Bus and Prof Code ?22575 (2004).
[vii] Cal. Civ. Code ?1798.83 (2003 & Supp. 2006).
[viii] Cal Civ. Code ?1798.82 (2000 & Supp. 2010).
[ix] Cal Civ. Code ?1798.84 (2000 & Supp. 2010).
[x] Cal Bus & Prof Code ?22575
[xi] Privacy Rights Clearinghouse, Protecting Consumer Privacy in an Era of Rapid Change, privacy rights clearinghouse, (Last visited March 12, 2013), available at https://www.privacyrights.org/ftc-protecting-consumer-privacy-report-comments.
[xiii] Better Business Bureau, Online Behavioral Advertising: What?s Going on Under the Hood, Better Business Bureau, (January 10, 2013) available at http://www.bbb.org/us/article/online-behavioral-advertising-whats-going-on-under-the-hood-39484.
[xiv] See Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1, 78 (Cal. 1994), see also Kahn v. Superior Court, 188 Cal. App. 3d 752, 765 (Cal. App. 6th Dist. 1987).
[xv] Kenney Gulley Jr. Computer or Software & Internet Companies/ Companies Based in CA, redbubble, (Last Visited, March 12, 2013), available at http://www.redbubble.com/groups/california-sound/forums/1495/topics/21805-computer-or-software-and-internet-companies-companies-based-in-ca.
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