California Paves the Way for Privacy

Taking the reins on behalf of the nation

If not for California, consumer privacy law would be at a complete standstill.

Despite Google’s recent move to sell and embed user endorsements in advertising and Facebook’s decision to make users’ Timelines searchable, privacy legislation in Washington isn’t moving. The White House has been talking about working on consumer privacy law for more than a year, and Sen. Jay Rockefeller’s (D-W.Va.) Do Not Track bill has only one co-sponsor.

But in California, Gov. Jerry Brown signed two bills that solidified the state’s lead position on consumer privacy, all but dictating privacy policy for the nation. “Once a state starts enacting privacy legislation, it becomes the de facto national standard,” said Lisa Sotto of law firm Hunton & Williams. It could compel other states to follow suit, even Congress.

The first law, known as the eraser button law, gives minors the right to erase information they posted. It also prohibits sites targeting minors from carrying ads for products like alcohol, tobacco, dietary supplements and other adult products. The second law requires online publishers and services that use behavioral advertising to be transparent on how they respond to Do Not Track.

For the most part, the laws codify what members of the Digital Advertising Alliance already do, but the eraser button may pose some problems. “It’s not clear,” said Venable partner Stu Ingis. “How do you know someone isn’t 18? The Facebooks already do this, but there are a lot of businesses with a social media component.”

While the laws may not have all the teeth privacy advocates desire, California’s actions do shed light on the federal government’s inaction.