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  • 2014

    Amidst the increasing public frustration over the use and leaking of private personally identifying information (“PII”) by government and private entities, California Attorney General Kamala Harris recently issued guidelines to help companies comply with the California Online Privacy Protection Act of 2003 (“CalOPPA”).

    Kamala Harris has been particularly active in this area of Online Privacy since she took the California Attorney General office in 2011. The recent amendment, effective January 1, 2014, is the first major activity on CalOPPA since it went into effect in 2004. Harris is also making special efforts to enforce CalOPPA, which does not itself have an enforcement provision, under California’s Unfair Competition Law, which permits penalties of up to $2,500 per violation. In 2013, Harris brought suit against Delta Airlines to enforce these penalties for violations to CalOPPA, but the suit was dismissed on other grounds. Thus, while it generally remains to be seen how the courts will interpret CalOPPA and this method of enforcement, it is clear that Harris is determined to take action in order to enforce the CalOPPA provisions

    With its recent amendment, the CalOPPA impacts all individuals and companies considered to be operators that collect PII of California residents, which in the “borderless world of online commerce” may extend to even individuals living and companies formed in other jurisdictions. Any company or individual who may be impacted should seriously consider evaluating whether their current privacy policy complies with all of the new CalOPPA requirements in order to avoid potential fines of up to $2,500 per violation with respect to each individual consumer using their Web site or service (e.g., mobile application). 

    The aggregate of each potential penalty assessed could grow exponentially and very quickly. The CalOPPA does provide each operator with a 30-day grace period to post a compliant privacy policy after being notified that its current policy fails to comply with CalOPPA requirements. However, every potential operator should take action immediately in order to avoid being subject to this effective 30-day deadline with its consequence of potential, substantial penalties.


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    Gibbs Giden Locher Turner Senet & Wittbrodt LLP
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